Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank the committee for this opportunity to talk to it about the general scheme of the birth information and tracing Bill. I am grateful that the committee has prioritised this legislation in its programme of work. I think we all share a wish to urgently address this issue, and it is my hope that we can all work together to achieve that in the interests of the people affected. I thank the Chair in particular for extending the time period for submissions to accommodate some additional groups.

The committee will know that this legislation seeks to enshrine in law the importance of a person knowing his or her origins. It provides for full and unredacted release of birth certificates, as well as full release of birth, early life, care and medical information as defined in the legislation, to all people who have attained the age of 16 years. The proposed legislation also establishes a statutory tracing service and contact preference register to support people seeking to share information or to make contact with their family. Additionally, it contains important bespoke measures to address issues arising for people who have been impacted by illegal birth registration. Since publishing the general scheme, I have consulted widely and I am really grateful to all the people who have engaged directly with me, given up their time and spoken to me about the legislation.

The urgent need for this legislation has, I think, been recognised by all political parties, Independents, stakeholder groups and professionals working in this area. I think the committee will know that there have been repeated attempts in the past to legislate for information rights for adopted people, that they have all been fraught processes and that, unfortunately, none of them have ultimately succeeded. In the absence of bespoke legislation, data protection and freedom of information, FOI, legislation are used as the alternative routes to birth information. I think the committee would agree that such legislation is not an appropriate way to manage an individual's request for birth information and that this has resulted in redactions, hurt, disappointment and many unanswered questions. This will continue for adopted children today until comprehensive legislation is enacted to change it. What is under consideration in this pre-legislative scrutiny is an opportunity to do so.

I have been listening very attentively to all the submissions made to the committee in the past few months and I am engaging directly with many of the affected people. In these remarks I will focus on some concerns that witnesses have raised when speaking before this committee. The points I will focus on are the terminology for mothers used in the Bill; the rights and services for mothers in the Bill; and the rights of adopted persons and why the information session is necessary to achieve robust legislation which can vindicate those rights.

I will first speak to the deeply sensitive issue of the term "birth mother", which is used in the first draft of the heads of the Bill. I have met a group of mothers and have heard from them on this issue, and I am very clear after that engagement that a more suitable term is needed. My Department is engaging with the draftsperson of the Bill on this matter. The mothers I met said to me that they felt that the term "birth mother" is reductive and hurtful. Some find the term "natural mother" more appropriate; others prefer the term "first mother". At the same time, I have received the results of a survey of adopted people which was commissioned by the advocacy group Aitheantas, which indicated that among adopted people there was a preference for the term "birth mother". These differing viewpoints are indicative of the challenge to find a term that is acceptable and works legislatively, but I stress that I am deeply committed to finding what that term is, and I acknowledge that the term "birth mother" needs amending. I look forward to hearing Deputies' and Senators' views on this point at today's meeting.

An associated matter that witnesses and those making submissions raised was the question of information rights for mothers. The clear objective of this legislation is to provide important origin information to adopted people and others such as those who are subject of illegal birth registration to vindicate their identity rights. The legislation is essential for adopted people to achieve full release of birth certificates and birth information in all cases. Mothers will already have access to the birth certificates and to their own identity information. It is different information they are seeking, namely, records relating to themselves and, in some cases, current information on their adopted child.

In the case of their own records, I have written to representatives of the mothers to whom I spoke to advise that their existing general data protection regulation, GDPR, access rights are not impacted by this Bill and, therefore, mothers can continue to avail of their existing rights under GDPR, data protection and freedom of information legislation to access information on records pertaining to themselves. They can also avail of the right to rectification, which is enshrined in the GDPR. This provides a route for mothers to rectify personal data held about them in historical files that they consider to be inaccurate or incomplete. That was a real concern for the mothers I spoke to. The existing rights of rectification under GDPR provide a clear avenue to address those issues.

In the case of seeking contact and current information relating to their adopted child, the proposed legislation provides two important mechanisms for mothers and other family members, namely, a statutory tracing service and the new statutory register. A mother will be able to apply for a tracing service to actively trace her adopted adult child, either to share or request information, including medical information, or to seek to meet. Similarly, a mother can use the statutory register to lodge a contact preference and information.

I would like now to address witnesses’ comments on the information session. I have heard it expressed before the committee that the information session is not required and that it hampers the release of information. That simply is not the case. The legislation aims to provide a clear legal basis for the full release of the birth certificate and birth information in all cases. To achieve this, the legislation must contain a mechanism to balance two sets of constitutional rights, namely, the privacy rights of mothers and the constitutional identity rights of children. Failure to provide that balance within the legislation risks it being found unconstitutional.

The manner in which this mechanism works is that it contains three key elements. First, there is a temporal limitation whereby the relevant person must be aged over 16 years before he or she can seek the information. Second is the information session itself, to inform the relevant person in cases where a parent has clearly registered a no-contact preference. Despite that, full information will then be released to the adopted person. The third element is counselling and support for parents and adopted persons, should they wish to avail of it. The session is a necessary and minimal mechanism to achieve the full release of information to all adopted persons and I stand behind it as a fair and compassionate way to communicate with an applicant that a parent has asserted a preference not to be contacted. A written statement appended to the information does not adequately fulfil the State’s obligation to convey the mother’s request for no contact and is not the correct way to communicate this type of information.

This legislation recognises that mothers are not a homogenous group. The committee will know that most mothers - a very significant majority or maybe a vast majority - are happy for the information to be released and in such cases, there is no requirement for an information session. However, there are some mothers who experienced a crisis pregnancy and had little or no choice or supports at the time. They have lived with this all their lives and may not have told anyone. We all know there is a very human dimension to this that goes to the very core of this debate about balancing constitutional rights. This group of mothers has lived with pain, hurt and fear. My Department has received anonymous calls from women in that position. I recently received a handwritten anonymous note from a woman outlining her situation about her crisis pregnancy. These women, because of the nature of their situations, will not be in a position to come before this committee to make their own case and as legislators, we cannot ignore their constitutional rights.

Equally, and I think we are all in agreement on this, we must act urgently to vindicate the rights of adopted people by providing a clear and straightforward basis for the release of full birth certificates and birth information. This legislation does that. Crucially, it breaks the link between the release of information and any subsequent contact as a result of that release. The information session is a vital component to achieving that and breaking that link. Even where a mother has registered an opposition to the release of her name, it will be released in all cases following the information session. That is the enormous change that this proposed Bill brings about. Previous attempts to legislate were severely criticised for processes that were much more adversarial. They were viewed as pitting the position of the mother and that of the adopted person against each other and for not guaranteeing the full release of information in every circumstance. This information session, as provided by this legislation, is non-adversarial. It is a simple, minimal measure that recognises the challenges, complexities and sensitivities for those impacted by adoption. That is the intention behind the information session.

Listening to the contributions the committee has received, I have heard the concerns that have been raised. I will be bringing forward, and am already working on, some amendments to address those concerns and ensure the information session better emphasises the identity rights of the adopted person. They will also ensure that the session can be held virtually, which will be particularly beneficial for the many people living abroad who will be seeking access to information through this legislation, and will remove the requirement for a social worker in every case. I know that was an issue that some groups had raised concerns about. The amendments will ensure the information session is as sensitive and user-friendly as possible.

I thank the committee again for the invitation and for the huge work each member is putting into considering this important proposed Bill. I thank everyone who has made submissions to the committee up to this point. I have taken the time to speak to some of the issues that have been raised in the submissions the committee has received to date. No doubt we will discuss those more in the context of members' questions. I believe the pre-legislative process strengthens the legislation and I look forward to receiving the committee's final report. After consideration of the report, I will engage with the Attorney General to make necessary changes to the draft heads of the Bill. The committee has my assurance that I will look to bring this Bill into the Oireachtas as quickly as possible thereafter.