Mr. Rody O'Brien:

I thank the Senator for that clarification. The balancing of rights is the elephant in the room when it comes to getting the legislation on adoption right and the information on tracing in that regard. Most members of the committee will probably, with all the various representations made, be aware of the seminal case heard in the Supreme Court, namely, that of I.O'T v. B. That was the case which identified the right to identity for adoptees and people generally. It is an unenumerated personal right in the Constitution under Article 40.3.1°. Since then, the privacy of the birth mother has also been an issue and is also an unenumerated right under the same article.

The difficulty in the context of legislation has been to balance those rights. Our contention and that of all adoptees is that the privacy of birth mothers has been given priority as a right over and above the constitutional right of identity. That right is not only recognised in Ireland but it is also recognised under the European Convention on Human Rights and there is a great deal of case law on this matter. Looking at this in stark terms, for legislators, it is a question of moving the balance in favour of adoptees. If we think of this issue in the context of adoptees and their families, who in many cases do not have access to health information or do not even know their identity in terms of where they come from, this is something that legislators should consider thoroughly and seriously.

It is a practical issue when we think about questions such as "Who am I?" and "Where do I come from?". I remember that I gave a lecture many years ago in University College Dublin to approximately 250 nurses. We spoke about this idea of freedom of information and accessing information in that regard. A case was taken by an adoptee's daughter in a situation where her father had been born in the Rotunda Hospital. He was in his 80s and in poor health. He wanted to know who his mother was. He sought that information from the Rotunda Hospital and it refused to release the information based on the right to privacy of the birth mother. She was long dead at that time. The court still maintained the aspect of privacy in that case. The poor man went to his grave not knowing who he was or the identity of his birth mother. When I mentioned that case in the lecture, I remember all 250 or so students gasping at the concept of not knowing who you are. That is what lies at the heart of this issue. I refer to the political will of legislators to look at rebalancing rights in this regard and to give priority to the right to identity-----