Dr. Maeve O'Rourke:

Senators McGreehan and Seery Kearney raised issues with regard to the constitutional landscape. An important point in regard to I.O'T v. B is that it was not concerned with the constitutionality or otherwise of legislation, nor is it concerned with access to publicly registered birth certificates. It is of very limited relevance. Another important recent development is the confirmation by the Court of Appeal that there is an unenumerated constitutional right to have one's identity correctly recognised by the State, which requires one to have access to that information in the first instance and to then have it used by the State. That is important.

On the question of what options are available to the Oireachtas, it is important to take into account the case of Fleming and Ireland, which as Senators will know establishes that the Oireachtas has great discretion in areas of sensitive, social policy, not to mention the case law of Tuohy v.Courtney where the Supreme Court essentially tells us that where you are balancing the rights of citizens against each other legislation would need to be arbitrary and to lack an objective basis to be struck down as unconstitutional. That is the background. It gives great discretion. The Oireachtas needs to consider what are the options. Is it strictly necessary and has the evidence demonstrated that social workers need to have to engage with an undefined category of adopted people. It could anyone whose birth parents opt to have no contact. Where is the evidence to say that it is necessary that these people be sat down with a social worker to be told solely about the parents' rights to privacy and the importance of respecting that as provided in the legislation as currently drafted? Where is the evidence that it is not sufficient to give this information in writing? We also have to consider all of the other measures that can be taken around that that are not punitive and are supportive.

It is important to mention the elephant in the room, which is the notion in the previous Bill that adoptees could be of harm to the health and life of their parents. We have laws on harassment. We have criminal law. There is no evidence that adoptees are a particular group in society that do not understand privacy unless a social worker sits them down and tells them what it means. They pose no more risk than the Irish diaspora abroad who every day of the week are invited to search for the long last families, to come home to Ireland, to visit the National Library to search their records and try to track down their birth relatives. Other things need to be considered, including, primarily, the Tuohy v.Courtney Supreme Court decision which demonstrates the latitude that the Oireachtas has here and that deference will be given to the legislation, once well thought through and the necessity has been really considered.