James Reilly (Dublin North, Fine Gael) | Oireachtas source

While I do not oppose the amendment, I reiterate that I foresee constitutional difficulties with the Private Members' Bill. This Bill differs from the Bill being prepared by my Department. It does not differentiate between prospective and retrospective adoptions. In this respect it does not address the complex constitutional issues that arise in respect of the provision of identifying information to those and about those who were adopted in the past. The legal advice I have received indicates that the right to know one's identity flows from the legal relationship between the birth mother and her child. However, the effect of an adoption order is to restrict that right to know.

While I am in favour of providing adopted persons with as much information as possible about their identity, there is a difficulty surrounding the notion that a birth mother's constitutional right to privacy can be dispensed with or retrospectively changed by new legislation. As Senators are aware, my Department is developing the heads of the adoption (information and tracing) Bill. Work on the heads of that Bill is nearing completion. It will set out the information to be provided and the circumstances in which it can be provided for past and future adoptions. The Bill will be explicit on the information that must be provided for all future adoptions. All who consent to an adoption will be fully aware of the information that will be available to adopted persons on request once they reach 18 years of age. In regard to adoptions that have taken place in the past, the issue is far more complex. I am advised that the proposed legislation can provide for retrospective identifying information to be given to an adopted person, but some restrictions must apply in respect of birth mothers who wish to protect their right to privacy. I would be concerned that the Private Members' Bill does not fully address these constitutional issues, but I am not opposing this amendment.