Averil Power (Fianna Fail) | Oireachtas source

As we outlined on Second Stage, we appreciate there are two rights at play here, namely, the adoptees' right to their identity and the natural parent's right to privacy. The courts have made it clear that neither of those rights are absolute. That point was made in the IO'T v. B case, and has been consistently made in constitutional cases with respect to all the rights in the Constitution. There is not a single right in the Constitution that is absolute. All of them must be balanced against competing rights within our constitutional framework.

The courts have also made it clear that the job of seeking to achieve a workable balance between competing constitutional rights is that for the Oireachtas. The Supreme Court jurisprudence makes it very clear that it is only when a case has to be brought in the first instance, and it is only if the court is of the view that the Oireachtas has got the balance completely wrong, that it will interfere. Many legal commentators would say that the Supreme Court is too deferential to the Oireachtas but under our system, the separation of powers makes it very clear that it is the job of the Oireachtas to legislate. Any Act, on being signed by the President, immediately enjoys the presumption of constitutionality. That is then only challenged if the President refers the legislation to the Supreme Court under Article 26 to test the constitutionality of a Bill or if an individual brings a case challenging it. However, when this legislation is passed by both Houses of the Oireachtas, as I hope it will be with the Minister's co-operation, it will benefit from the presumption of constitutionality.

We are confident that the Bill is constitutionally sound. We have got extensive legal advice on it. Dr. Fergus Ryan, who drafted the Bill for us, is a constitutional law expert. I have consulted with other constitutional law experts who are also of the view that the Bill is constitutional. I accept these issues are arguable. That is always the situation until the Supreme Court hears a case on an individual item of legislation. Nobody can say with certainty that it would or would not uphold the Bill. One only knows that when the court considers the case, but the arguments that it is constitutional are persuasive.

We carefully balanced the two rights. In fact, it is arguable that the current situation is unconstitutional because in elevating the privacy rights of the natural parent, we have nullified any right to an identity. The current balance, if it can be called that, between privacy and identity is that in order to protect the privacy rights of some women who may wish to exert privacy, and we should be clear that that is not all of them, and for whom this may be an issue, we are prepared to ignore and give no value to the identity rights of 50,000, 60,000 or 70,000 Irish adoptees. That is not a balance, and that is not correct.

Our Bill balances the two rights in a way we believe is fair. It makes the distinction between the adoptees' right to identity and to have identifying information about themselves and their family background and contact, which we accept is a different issue. The Bill makes it very clear that the adoptive parents contact details will only be released if they are happy for those details to be released. That is a fair system. It also puts in place an intermediary arrangement through which adoptees and natural parents may have contact with each other. If the natural parent is seeking to reach out to the adopted son or daughter, he or she can contact the Adoption Authority and do that and vice versa, where an adoptee wishes to make contact with his or her natural parent.

We must be clear that the current arrangement does not prevent unwanted contact. If anything, it makes it much more likely because even without a statutory right to one's birth certificate and the ability to get this information straight away as a matter of right from the Adoption Authority, adoptees can get the information themselves. They can do their own trace. Detailed guidelines have been produced by the Adoption Rights Alliance and others to assist people in doing a trace. As I said, the birth records are public documents. If one can narrow it down to a name or even a year, an adoptee can go in, look at his or her birth date and ascertain straight away from the public records the name of every female baby born on that date, if a woman is trying to do a trace. They can get the names of all the natural mothers, usually the only name on the birth certificate. They can then narrow that down using other information they are able to ascertain such as geography, and particularly if the name is unusual. They can quickly go from having a name on the birth certificate to ascertaining somebody's address.

They can refer to the electoral register. Most of the electoral registers are now online. I looked at them again last week. People can get access to the Dublin city electoral register from the comfort of their home on their laptop and get the home address. If they have a name they can get the home address of where they lived in the mid-1960s from the electoral registers because those documents are public. That takes a great deal of effort, and it is disheartening for people to have to do that on their own. It is a lonely journey, but it is not impossible and people do it, and when they get to the end of the road and they have the information, because there is no intermediary for them to go through, their only option is to make direct contact with the natural parent concerned or vice versa, if it is a natural parent tracing their adopted adult son or daughter. Nobody wants to do that. That is not a supportive situation for anybody.

As an adopted person, when I reunited with my mother I was so conscious of being sensitive to her needs and not knowing the circumstances of my birth or how difficult that may have been for her and the difficulty of the adoption. We would all prefer to have a system that is supportive of everybody concerned and has an intermediary, rather than putting people in the situation where they have to write letters out of the blue, make telephone calls or turn up on somebody's doorstep. Nobody wants to do that.

The current arrangements do not prevent unwanted contact. The arrangements we are proposing would deal with that issue but it is important to distinguish, as the Bill does, between access to identifying information and contact. Not every adoptee wishes to have contact or to re-establish a relationship with their parents. Some do, but some do not. Some simply want to know who they are. They want their own records if they spent time in a mother and baby home. They want to know if they were subject to vaccine trials. They want the rest of their medical history. They do not all necessarily wish to meet, and those who do handle it in a very sensitive way. Our approach to this area has been based on the false assumption that adoptees are irrational, insensitive people who will force themselves into the lives and the homes of their natural parents. That is incredibly offensive and unfair. It is not true, and if that is the situation in a tiny minority of cases, and that is possible under our current arrangements, we have other laws to deal with that. We have laws on harassment and so on, which are completely separate, but to assume the worst case scenario, and legislate for the worst case scenario, is incredibly unfair. It has done a great disservice to thousands of adoptees and their natural parents. It has also done a huge disservice to the women involved.

I have had a great deal of correspondence, as have Senators van Turnhout and Healy Eames, from natural mothers since I first started talking about this issue, and many of them told me that far from seeking confidentiality, they were forced by clergy to sign agreements and swear oaths. Their baby was taken from them in the hospital immediately after they gave birth, when they were not in a fit state of mind. They were bullied into putting their child up for adoption and bullied into signing forms. I would love the Minister, the Adoption Authority or anybody else to produce a confidentiality agreement that was actually sought by an actual mother because my understanding was that it worked the other way around. The women were forced to sign papers. They were forced to swear oaths saying they would never look for their child. Many of those women have carried the hurt and the pain of that for years.

The last time we brought forward this Bill, Philomena Lee issued a plea to the Minister and the Government to accept it. She said that if this Bill had been in place when she went looking for her son, Anthony, and indeed when Anthony was looking for her, she would have met him before he died.However, she did not meet him, because of all the secrecy and the assumption that women do not want to be reunited with their children when that is not the case. We accept, of course, that there will be some cases where women might not wish to do that. They might find it difficult because the circumstances of the birth might have been difficult for them or they might not be in a place yet where they are ready to deal with it. However, the Adoption Authority reaching out to them, making them aware of the fact that their son or daughter is looking for them and an offer of counselling might provide those women with the space to think and talk about it. For some of them it might be the first time they have talked to anybody for years.

Women have approached me to tell me their stories. One lady, who is in her 70s, told me that she gave her child up for adoption 40 years ago but she never had a conversation with anybody about it. She broke down telling me what had happened. There are many such women. I have also been contacted by women who told me that they stayed silent for so long because they were worried that their spouses would not be happy or that their sons or daughters would be annoyed that they had had a child before they were married and had not told anybody. All of those women told me that when they reached out and told their family about the child they had put up for adoption, the reaction of their sons, daughters and spouses was to ask why they had not told them about it previously. Many of the women are trapped in pain from the 1940s, 1950s and 1960s as a result of how women were treated then and the judgmental attitude there was towards them. However, they find that when they tell their adult sons and daughters about the child given up for adoption, the sons or daughters tend to say, "My God, you are my mother. I cannot believe you have been carrying this pain. Let me help you." In fact, the sons and daughters help them to get through it and look after their mother in re-establishing a relationship with the adopted child.

It is not right that, due to some obsessive and irrational fear of the worst case scenario, we do nothing for 50,000 to 60,000 adoptive people and their natural parents. It is based on false assumptions that the women do not wish to be contacted. That is not the case. In many circumstances many of them have beaten paths back to the mother and baby homes. It was Sean Ross Abbey in Philomena's case, and other women have returned to the orders seeking information but have been denied it. They, as much as their adopted sons and daughters, are equally seeking to have this legislation in place and asking the Minister to work with us in bringing it forward.

I note the Minister mentioned that he is still working on the Government's adoption information and tracing legislation. That is disappointing. There is a Bill before him that has the support of the House. It received the overwhelming support of the Fine Gael and Labour Party spokespersons on Second Stage and I thank them for that. We acknowledge that it is not perfect and we would like to work with the Minister on it. We hope that he will table amendments on Report Stage to address any of the concerns he has. However, we have a Bill while the Government does not even have the heads of a Bill, and there is only a year left. These women cannot wait any longer. I am constantly contacted by people who tell me that by the time they finally got the information they required, the person they were seeking, whether it was their mother or sibling, had passed away.

We have an opportunity here to do something and we hope the Minister will work with us on doing it. We accept there is a constitutional context but we have done a great deal of work to ensure the Bill is constitutionally sound. However, we are more than willing to meet with the Minister outside the House to discuss it and to have our legal experts meet with the Minister's experts to thrash this out. We must find a way of moving this forward. The excuses about why it is difficult are not enough. If the Government intends to bring forward a Bill that takes the easy option of simply legislating for open adoption in the future, that will not help anybody. There were 112 adoptions last year in Ireland but there are 60,000 people, like me, who were adopted in the past who do not have a right to their information. If the Minister simply brings forward a Bill that does something for people into the future, he will do an incredible disservice that would be very unfair to everybody who was adopted before that.

I appreciate that it is a sensitive issue and that it must be addressed carefully, but we are prepared to do that with the Minister. Other countries have legislated on this. The UK has had a system for 40 years whereby adoptees are entitled to the rights we are providing for in this Bill. There is precedent, therefore, and it is workable, but we must have the co-operation of the Minister to move this Bill forward.