Charles Flanagan (Laois-Offaly, Fine Gael) | Oireachtas source

The right to privacy has been firmly established as a constitutional right through a series of legal cases beginning in 1974 with McGee v. the Attorney General, which concerned marital privacy, and culminating in the Kennedy v. Ireland case in 1987 where a general constitutional right to privacy was fully 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 so-called "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 her privacy.

In considering the right to privacy of a birth mother in the context of the adoption (information and tracing) Bill very many legal and constitutional issues have arisen in the drafting of the legislation.

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. While I am anxious to improve the legal status for access to adoption records, my proposals to the Government must 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 and has assisted in identifying the constitutional parameters within which policy can be advanced. 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.

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. Thereafter, there will be consideration by the all-party Oireachtas Joint Committee on Health and Children, which will provide an opportunity to tease out the relevant considerations in detail and to hear the views of interested parties.

Additional information not given on the floor of the House

I would like to confirm my intention to provide access to as much adoption information as is possible, taking account of relevant legal and constitutional considerations.

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