Ivana Bacik (Independent) | Oireachtas source

I wish to share time with Senator Ó Ríordáin.

I welcome the Minister. I also very much welcome the deferral of Committee Stage and its replacement with statements. I thank the Minister for her very full opening statement to us in which she set out her views. I wholeheartedly agree with the content of her letter to the Attorney General as she explained it to us, particularly her view on the balancing of rights, her reading of the I O'T v. B case and her view of the Constitution as a living document. I am also very glad to hear that the Attorney General's preliminary advice, as I understand it, is that there is no difficulty in principle with the amendment I have put forward.

For the assistance of colleagues, I will confirm the text of the amendment I put forward, about which I spoke in this House last week and which I subsequently developed. I thank those to whom I spoke about the drafting and preparation of the amendment, notably Dr. Maeve O'Rourke, Ms Susan Lohan of the Adoption Rights Alliance, Mr. Liam Herrick from the Irish Council for Civil Liberties, our drafter Mr. Finbarr O'Malley in the Labour Party and Deputy Joan Burton, all of whom were very helpful to me in giving my initial idea a little more substance. It is now amendment No. 71a which was circulated to all colleagues as part of an additional list of amendments earlier this week. It seeks to insert a new section 23 which reads:

In page 20, between lines 28 and 29, to insert the following:“Rights from birth

23. (1) This Act is based upon the principle, recognised in the United Nations Convention on the Rights of the Child, that every child should have as far as possible the right from birth to know his or her parents and to preserve his or her identity, including nationality, name and family relations.

(2) In keeping with this principle, notwithstanding any other provision of this Act, where an application is made for provision to the applicant of information referred to in section 22#, including the birth certificate of the applicant, there shall be a right of access to such information, including the applicant’s full original birth certificate, whether the applicant is a person whose adoption was effected before or after the date on which this Act comes into operation.

(3) Notwithstanding subsection (2), upon commencement of the Act the Minister shall make provision by way of regulation for a six-month period of extensive advertising and outreach in order to ask for any birth mother who may have given a child up for adoption previously to come forward to the Agency if they wish to assert an objection to the disclosure of the birth certificate of that child or other relevant information identifying of them as birth mother, based upon their privacy rights, and the advertising and outreach shall specify that such birth mothers may at any time after registering an initial objection within the six-month period come forward to withdraw such objection.

Subsection (3) is the core of the opt-in procedure I am proposing as a replacement for the opt-out procedure. As I see it, the strength of this proposal is that it still provides a mechanism for individual birth mothers to come forward and assert their privacy-based rights. The Minister sought to achieve such a balance.

As I said last week, as others have said and as we have heard in the extensive correspondence from adoptees, the previous set of amendments was insufficiently cognisant of the information and identity rights of adoptees, and the right of the child to his or her identity as set out in the UN convention. Those amendments placed too great an emphasis on the privacy rights of birth mothers, many of whom, as we have heard in correspondence, do not want to assert privacy rights, have never been given any such undertakings and often signed up to conditional consent that was coerced out of them. We have heard even more distressing disclosures about the Majella Moynihan case. Senator Kelleher is quite right when she says that reproductive justice for women is the context in which we are debating all of this. I am glad it seems that subsection (3) will pass muster constitutionally. It is clear that it will need to be tweaked. I am glad to hear that the idea of opting in will pass. As I said last week, it is based on previous precedent, notably the residential institution redress procedure, in which the State invites applicants to participate. I have been told since our last debate that our approach is also based on practice in other jurisdictions and on the way we advertise the national contact preference register. I think there is a robust precedent.

I understand from the Minister's statement that the Attorney General does not believe the next provision in my amendment, subsection (4), would pass muster. Subsections (4) and (5) provide:

(4) If such objection under subsection (3) is made to the Agency by a birth mother, it shall be registered as an objection by the Agency, so that if any applicant seeks provision of section 22 information, including their birth certificate, in circumstances where such provision would disclose the identity of that birth mother who has asserted an objection, the applicant shall be informed of the objection and shall attend at an information meeting to be facilitated by the Agency, at which the information shall be discussed with them and provided to them.

(5) Where no such objection is made to the Agency within the specified six-month period, any applicant who seeks disclosure thereafter of section 22 information, including their birth certificate, shall be provided with such disclosure by the Agency.

The key difficulty we need to address in respect of subsection (4) is the need to meet the Attorney General's request for us to come up with an additional condition on access. The Labour Party cannot support a Bill that seems to be premised on placing an undue emphasis on privacy rights and an insufficient emphasis on rights of information and identity. The key challenge is to find a middle way. Senator Higgins has helpfully set out an alternative proposal that falls between the information meeting, which is the sole condition we are proposing on an applicant's right of access to information, and the very cumbersome and labyrinthine procedure of hearing and determination before the Adoption Authority of Ireland and then the Circuit Court. I think there must be a middle way. Perhaps the existing GDPR and Data Protection Commissioner process represents such a way. We will work and engage with the Minister constructively to ensure this Bill meets the requirements of adoptees, birth parents and other stakeholders.

I am grateful not only to the people I have named, but also to the Minister and her officials, whom I have met and communicated with on a number of occasions since we last discussed these matters in this House.