Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank the Deputy for that question. I have made a decision in line with parliamentary reforms that the heads of that Bill will go to the Committee on Health and Children. When they do, the complexities and parameters of the situation regarding access to information for those people who have been adopted will emerge quickly once discussions begin on the heads of the Bill. It will provide an opportunity to tease out the very question the Deputy has asked.

The right to privacy has been firmly established as a constitutional right through a series of legal cases which began in 1974 with the Magee v. the Attorney General case, which concerned marital privacy. It culminated in the Kennedy v. Ireland case in 1987 where a general constitutional right to privacy was recognised.

The right to privacy was also recognised in the IO'T v. B case, a Supreme Court case from 1998. The case concerned two people who were the subject of "informal" adoptions. The majority of the court held that a natural child had an implied constitutional right to know the identity of his or her mother, though this had to be balanced against the right of the natural mother to privacy.

In considering the right to privacy of a birth mother in the context of the adoption (information and tracing) Bill, as I have previously advised the House, very complex legal and constitutional issues have arisen in the drafting of the Bill. A particular difficulty has arisen in seeking to reconcile an adopted person’s request for information about his or her identity with the right to privacy of his or her birth parent. We are therefore in a different position to other countries that do not have a constitution.

While I am anxious to improve the legal basis for access to adoption records, my proposals to Government have to reflect the constraints on the Legislature in providing such access if they are not to fall foul of constitutional challenge. The Office of the Attorney General has provided comprehensive legal advice to my Department that has assisted in identifying the constitutional parameters within which the heads of the Bill have to be drafted. It is on the basis of that legal advice that I have indicated there is a need to take into consideration the constitutional right to privacy of the birth mother.

I understand that the legal advice did consider the IO'T v. B case, while noting, as I did earlier, that the circumstances there did not involve a case where an adoption order was made. In circumstances where an adoption order is made, thus under law severing parental rights and duties, a birth mother's right to privacy may have more force.

That is the legal advice I have at present. A huge amount of work has been done to date. I can say more in the subsequent reply concerning what actually can be done.

Additional information not given on the floor of the House.

My Department is continuing to work on the adoption (information and tracing) Bill and I hope to be in a position to seek Government approval to publish the heads of the Bill as soon as possible. Subsequent consideration by the Oireachtas Committee on Health and Children will provide an opportunity to tease out the relevant considerations in detail and to hear the views of interested parties. I am anxious to provide access to as much adoption information as possible taking account of relevant legal and constitutional considerations.

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