Dáil debates

Thursday, 20 January 2022

Birth Information and Tracing Bill 2022: Second Stage (Resumed)


1:45 pm

Photo of Jim O'CallaghanJim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I welcome the introduction of this legislation to the Houses of the Oireachtas and commend the Minister, Deputy O'Gorman, on bringing it forward. This legislation is extremely important because it engages with some of the fundamental rights enjoyed by Irish citizens under the Constitution. Bringing legislation that involves giving statutory effect to a constitutional right through the House can often be easy because all you have to concern yourself with is one fundamental right. However, it is very challenging here because the Minister has to deal with two conflicting fundamental rights.

On the one hand, we have the right to identity, while on the other hand we have the right to privacy. It is important that the House consider what the law is now regarding each of these rights before we give effect to this legislation.

In respect of the right to identity, in 1998, in the case of IO'T vB, the Supreme stated that one of the unenumerated rights under our Constitution is the right for people to know who they are and who their parents are. In that judgment, the Supreme Court pronounced that right. It was on foot of an application by an applicant under the Status of Children Act 1987 to try to get a declaration that the applicant's mother was the respondent in the case. Although the Supreme Court recognised the right to identity in that case, it also stated that there was another, conflicting right. As is always the case, no right appears to be absolute. The Supreme Court said the conflicting right in that instance was the right of the mother to privacy and confidentiality. That is how the Irish courts have dealt with this issue in the context of the 1998 case heard by the Supreme Court.

The right to identity is also a major issue in a European context. In 2003, the European Court of Human Rights, ECHR, gave a judgment in the case of Odièvre v. France, where a French woman challenged the very strict laws that operated in France to prevent individuals from gaining information about the identity of their mother or parents. The ECHR looked at the case and said that under Article 8 of the European Convention on Human Rights, one of the rights we have is the right to identity and to know who we are. Similar to our Supreme Court, though, the ECHR stated in 2003 that the right to identity was one that had to be balanced with the equally strong right of a mother to preserve her privacy and her confidentiality. In that case, the ECHR stated that the Article 8 right did exist, but that it was not breached in that instance because the French Government was operating within the parameters when it decided to have laws that were very protective of the mother's privacy.

Therefore, in introducing this legislation, the Minister is in the difficult position of trying to balance these two conflicting rights. At some stage this legislation is going to be appraised by a court. When that court comes to look at this legislation, it is going to examine the way the Houses of the Oireachtas balanced these rights and how weight was given to the right to identity, but also to the right to privacy. That is why it is so important for us to not just ignore the other right which exists in this context when we are balancing them up. I remember speaking to the Minister's predecessor, Katherine Zappone, and I said to her that my opinion when we have these two conflicting rights was that the right to one's identity should trump the right to privacy. That is a big statement, but I believe it is correct. I believe the Minister has done that in this legislation.

The right to privacy, however, does not become completely forgotten or eliminated. It is important that we recognise that the right to privacy still exists in respect of other individuals. If I wanted to find out information as to whether a woman had a child 20 or 30 years ago, and if I had no relationship with her, then I would not be entitled to the information because it is private to her. The circumstances would obviously be different, though, if I was the child of that woman and I was trying to find out that information. Therefore, it is very important that we balance these conflicting rights. When a Supreme Court looks at this legislation in future and asks whomever represents the State where the Oireachtas considered or gave effect to the right of privacy, it will be important to be able to point to where that happened. Section 17 deals with the information sessions and, in that context, the State will at least be able to state that consideration was given to the right to privacy in the Oireachtas, and that it was not acting irrationally or without any consideration of the right to privacy. The inclusion of information sessions in this legislation recognises that the Oireachtas did take into account the right to privacy.

The right to identity is one of the growing rights around the world. It is fundamental as we go through life that we recognise the importance of knowing who we are. That is why the Minister deserves to be commended for this legislation giving statutory recognition to the right to identity and, in circumstances where it conflicts with the right to privacy, giving supremacy to it. It must also be recognised that the right to identity does not begin and end in the area of adoption. We are going to introduce legislation on surrogacy at some stage this term. Again, in that context, it will be necessary for us to ensure that the right to identity, which is recognised as a right in the Constitution and under Article 8 of the European Convention on Human Rights, is given proper protection and recognition in any such legislation.

Many people have suffered badly because they have not been able to extract information about their own identity. For many years, in the context of the decision in the case of the Supreme Court in the case of IO'T vB, and the judgment of the ECHR, the State acknowledged the need to balance the right of the mother and to give equal recognition to that right to privacy along with the right to identity. Not only do I commend the Minister in this context, but, equally, the legal advice has changed in recent times and the Attorney General also deserves to be commended on giving what is broader and braver political advice concerning what is permissible under the Constitution. I believe he is correct in his assessment that a court which may come to look at this legislation, provided we give recognition to the right to privacy, will respect that as policymakers we have made the decision that we wish to ensure, notwithstanding that right to privacy, that the right to identity supersedes it in this type of situation.


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