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

I am pleased to have this opportunity to discuss these issues because Deputies are right. This section is central to this legislation and is central to us being able to ensure that if this legislation is challenged, it will be found to be constitutional. That is a very real risk. Many of the difficulties adopted people face in this area are the result of a constitutional challenge about the release of information in the case of I. O'T v. B. I know there are many criticisms of the way in which it has interpreted by courts, successive Governments and State agencies but nevertheless that case has had a massive influence. That was a situation where a parent challenged the release of information so we are not talking in the abstract here. Because of the fraught history of adoption in this country, the secrecy around it and the need for secrecy that is still experienced by some adopted people and, in particular, some mothers, this is a fraught area so we must design legislation that is not at risk of being found to be unconstitutional.

We are trying to balance two sets of constitutional rights here. Much of our discussion at this point has been about the right of the adopted person to their identity. This is a right that successive Irish Governments and legislation have failed to vindicate. We must say this upfront. Adopted people have been failed when it comes to the vindication of their right to identity. The right to identity is now recognised by the courts as an unenumerated right and a constitutional right and it is recognised under EU law as well. With this legislation, we are seeking to vindicate that right. However, there is another set of rights holders in many of these cases. This involves a parent seeking to exercise their right to privacy. Again, it is important for us to realise that we cannot make any value judgments about the decision of a parent to exercise that right. If a parent wishes to remain anonymous from a child they gave up for adoption, that is their right and that is an exercise of their right to privacy. We may think it is terrible that they must feel that need, and it is something I personally feel, but it is not my decision to make. It is their exercise of their privacy right, which is a constitutional right. It is important that we balance constitutional rights in this situation.

One of the amendments here proposes to delete this section in its entirety - this balancing section set out by the information session. I very much wish to put on the record that if this section is deleted in its entirety, this Bill will be constitutionally flawed because there will be no recognition of privacy rights and this will be easily struck down by any future court.

In terms of how the balancing mechanism we are bringing forward in this legislation works, an adopted person seeks access to their information. The agency looks at the contact preference register. Where a preference accepting contact is put on the contract preference register or there is no entry in the register, all information is immediately provided to the adopted person. Nothing more needs to happen. All information is released through whatever mechanism the adopted person wants. If they want it sent to them in written or photocopied form, that is fine. If they want it in an email, that is fine. If the agency finds that there is a no-contact preference, which is something a parent will have proactively do following the introduction of the three-month public information campaign that will follow the passing of this legislation, and the parent has decided they want it registered that they do not want contact, the agency will call the adopted person or undertake an online or in-person meeting.

It is important to remember that it can be by way of a telephone call as well. In that telephone call, three elements will be discussed. First, the designated person, who no longer has to be a social worker because we took on board people's concerns about a social worker, will inform the adopted or boarded-out person of the entitlement of the relevant person to obtain his or her birth certificate and birth information related to him to her, as the case may, in accordance with this Act. Second, "that the parent concerned has stated, in accordance with this Act, that he or she is not willing to be contacted by the relevant person". The third element is the "importance of the relevant person respecting the privacy rights of the parent and the preference of the parent referred to in paragraph (b)". That is the content of the telephone call as set down clearly in legislation. I have heard the concerns that adopted people have expressed about the content of that telephone call. I propose to bring forward an amendment to section 17(2)(c), which we will have an opportunity to discuss later on.

That is the process. After the telephone call has taken place and those three points have been conveyed to the relevant person - the adopted person - the full information is provided for. We are going from a situation where a statement by a parent that he or she wanted to exercise his or her privacy rights meant an adopted person got nothing to one where, when a parent exercises his or her privacy rights, the above mentioned elements are conveyed to the adopted person by way of telephone call and the adopted person gets everything. That is the scale of the change we are talking about here. It is important to understand the scale of that change because that is a huge limitation on the privacy rights of the parent. The balance has entirely shifted from one that favoured the privacy rights of the parent in almost every situation, and led to adopted people being so restricted for so long, to a situation where the privacy rights of the parent are restricted. Parents cannot now keep their names from the adopted person in any situation. All they can do is, through this process, have their no-contact preference conveyed to the adopted person. It cannot be enforced. In previous drafts, the adopted person was asked to sign a statutory undertaking, which later changed to a non-statutory undertaking. In one of the earlier drafts, there was a criminal prohibition on the adopted person contacting the parent. All of that is removed. All that has to take place now is this meeting.

Why have we chosen the idea of an information session? It is important to reference that this is not something that came from my Department. Rather, it this is something that has been discussed as a means of balancing those sets of rights. I will refer to a couple of documents from outside of my Department. In their analysis of the Adoption (Information and Tracing) Bill 2016 introduced by former Minister, Katherine Zappone, a group of academics brought forward an opinion on the Irish Constitution and EU general data protection regulations. The academics are people well known to us, including Dr. Conor O'Mahony, Dr. Fred Logue, Dr. Maeve O'Rourke, Dr. James Gallen, Dr. Eoin Daly, Mairéad Enright, Dr. Sinéad Ring, Rossa McMahon and Dr. Laura Cahillane. They did a detailed analysis on the previous legislation. It is a lengthy piece, with which, I am sure, members are familiar, but I would like to cite paragraph 30. It states:

Thus, in order for legislation in the area of adoption information and tracing to be deemed unconstitutional, it must be shown that the law is arbitrary and lacks an objective basis. It is on this basis that we submit that the Constitution does permit the Oireachtas to legislate in the manner proposed by several Senators earlier this year: providing automatic access to identifying information for people who were adopted in the past following an information session, and accompanied by a fully resourced voluntary National Adoption Contact Preference Register and voluntary tracing service.

Again, the concept of the information meeting is set out in that detailed piece. I refer also to the draft Bill, namely, the Adoption (Information and Tracing) Bill 2019, that was put forward by the Adoption Rights Alliance in 2019, which was an effort by that organisation, which has been very active in this area, to seek to balance the conflicting rights, the privacy right of a parent with the right to identity of an adopted person. I will set out sections 25(1) to 25(3), inclusive, of that draft Bill:

(1) An tArd-Chláraitheoir shall on an application made in the prescribed manner by an adopted person, a record of whose birth is kept by an tArd-Chláraitheoir and who has reached the age of 18 years supply to that person on payment of the prescribed fee (if any) such information as is necessary to enable that person to obtain a certified copy of the record of his/her birth.

(2) It shall be the duty of the Independent Information Service to provide an information session to the adopted person, the format of which shall be prescribed in consultation with the Adoption Advisory Group. The information session shall serve the following purposes: (a) To inform the adopted person about the records held by the Independent Information Service about them;

(b) To provide the adopted person with information on how to read and understand adoption records;

(c) To inform the adopted person of the existence of the tracing service provided by the Agency;

(d) To inform the adopted person of the existence of the National Adoption Contact Preference Register. (3) An tArd-Chláraitheoir shall not supply a person who was adopted before the date on which this Act was passed with any information under subsections (1) and (2) of this section unless that person has attended an information session as prescribed under subsection (3) of this section.

It is important to make the point that in terms of this effort to address issues with the previous legislation - I regret Deputy Bacik is leaving because I am about to cite her - Deputy Bacik stated:

the Minister could make provision for an option, such as that provided for in Averil Power's Bill, that those who do not wish to sign an undertaking could have an alternative option, such as a meeting a social worker or counsellor, as provided for. Provision of such a meeting would have to ensure that it would not become unduly burdensome on those seeking to avail of the option, but this is a simple and practical way to get around this difficulty.

Two years later, Deputy Bacik and colleagues brought forward an information session almost identical to the information session provided for in this legislation. It is important to put that on record because there is a sense out there that this is some crude mechanism that is being introduced to inflict further injury and insult on adopted people when it is a mechanism that has been suggested by a range of highly knowledgeable sources to address that really difficulty and tricky situation we are grasping with, namely, how to reconcile those two sets of privacy rights.