Katherine Zappone (Dublin South West, Independent) | Oireachtas source

I thank Senators for agreeing to allow a deferral of Committee Stage of the Adoption (Information and Tracing) Bill 2016 today so that I could come before the House to make a statement about adoption and hear their views. Having met advocacy groups, lawyers and social workers in my Department yesterday evening as another part of my ongoing consultation with key stakeholders on this Bill, I believed it would be more helpful for us to have an exchange of views about some of the challenges of the legislation before we proceed with Committee Stage. Members will be aware that this Bill was published towards the end of 2016 and I brought it into the Seanad in May 2017. The Bill seeks to put in place a comprehensive statutory scheme for information and tracing and deals with identifying and non-identifying information. It also provides for relevant records to come into the custody of the Adoption Authority of Ireland and for the creation of a searchable electronic database for those records.

In applications for the release of identifying information, important rights are engaged relating to privacy and identity. Legislation must provide a mechanism for balancing these rights in individual cases. The balancing of these complex and competing rights has been a considerable challenge and has delayed the progress of the Bill, which as I said before was published in 2016. Subsequent to that time my officials and I, along with the Attorney General and his officials, have been working consistently to prepare Committee Stage amendments in light of strong criticisms from advocates, adopted persons and others of the ways we sought to reconcile the competing issues of privacy and identity.I will share some of my personal views with the House. As part of my engagement with the Attorney General and his office, I wrote a lengthy letter to him on foot of my involvement in an international conference on transitional justice, which took place in Boston. International and Irish experts, some of whom are adopted, took part in an extensive debate at the conference on Ireland's adoption regime. I outlined to him my strong view that we needed to adopt a different approach in the amendments to the Bill that were being prepared for Committee Stage. The views expressed by adopted people about their life experiences and their interaction with State and church officials and agencies, particularly with regard to their efforts to seek information that is absolutely core to their identity, were deeply disturbing to me. I said it was my considered view that the approach in the Bill, while not intended to be so, would extend into the present the harm that adopted people, through legal or illegal means, had experienced in the past.

In my letter to the Attorney General, I outlined a number of principles for my Ministry, three of which I will mention. First, to put it simply, the right of the child to identity needs to be recognised as weightier than the right to privacy of natural parents or guardians, or indeed the adopted parents of the child. I do not suggest that the latter right should be disregarded, but that it should not be given priority in the balancing of rights. Second, I believe family rights trump the right to privacy. Third, the rights of an adult in 2018, who was a child when he or she was adopted, should be contiguous with a child's right to identity.

I noted in my letter to the Attorney General that I believe the Constitution is a living document. I argued that as the social context changes, our understanding of the common good can change. We should be free to ground ourselves in the present social context to interpret a Constitution that lives. I made the point that the I O'T v. B case was decided in a legislative vacuum because there was no statute expressing the view of the Oireachtas on where the balance between privacy and identity rights should be struck. I believe it is open to the Oireachtas to strike a different balance from that struck by the Supreme Court in the particular circumstances of the I O'T v. B case, as long as this balance does not interfere disproportionately with either right. As courts defer to the balance proposed by the Oireachtas in questions of contentious social policy, such as this one, I suggest that Oireachtas legislation, in which we articulate our view of where the balance lies and how to give effect to both rights, would enjoy a strong presumption of constitutionality. I said many things in my letter and I have put a few of them on the record of the Seanad today.

I received a lengthy letter from the Attorney General in light of his extensive personal engagement with this Bill and with his officials. The views expressed in that letter helped us to develop the Government amendments that were prepared for Committee Stage. As Senators are aware, the amendments in question propose the removal of the compelling reasons provision and the requirement that an applicant must sign an undertaking not to contact his or her birth parent to access information. For many adopted people, these were two of the most offensive aspects of the Bill as passed on Second Stage. We heard, we listened and we were able to change our approach. I am aware that the amendments proposed to section 5, with the intention of taking another approach to the balancing of rights, are not acceptable to many people. I have received hundreds of emails and spoken to advocates and some Members of the Oireachtas. I continue to listen and to hear. I asked Senator Bacik to develop the views she outlined in this Chamber the previous time we met into a Committee Stage amendment that we could consider as another way forward. She has done this, and I am most grateful to her for that.