The renewed controversy about the basic right of access to birth information for adopted people often misses a key point – the very same issues are facing adopted children born today. Successive Irish governments have failed to resolve the long-standing need to guarantee a basic right of access to such information. The very real impact of this is a lack of human rights of children adopted now – just as was the case for those adopted in the past.
The reason we find ourselves in this no man’s land is due only in part to a history of adoption built on secrecy and denial. It is also a result of an interpretation given to a Supreme Court decision of IOT v B in 1998. Subsequent interpretations of this judgment, which relates to two cases of informal adoption, has had a huge knock-on effect on the disclosure of birth information to adoptees. It has resulted in an overly conservative approach that continues to suppress the needs and rights of adoptees and prioritises the privacy rights of birth mothers.
Draft legislation on adoption information and tracing in 2016 added further insult to injury in that it contained measures that provided for conditional access only to birth information. Several attempts have been made to introduce legislation on the right to information, the most recent being a private members bill introduced by Kathleen Funchion.
The absence of legislation guaranteeing all adopted persons a legal right to information concerning their identities means that Ireland is now significantly out of step with minimum international standards concerning identity rights.
While recent changes in both the Irish Constitution and adoption legislation have resulted in new legal routes for adoption, such as adoption from State care, there are perhaps unanticipated and unforeseen consequences resulting from these changes.
In effect, there are now two cohorts of child adoptees in Ireland – those who may have pre-existing information concerning their birth families due to the circumstances of their adoption from care, and children who are adopted through more traditional routes who are denied any right to legally access their birth family information.
This means that just as happened people adopted in the past, children who are adopted in Ireland today still have no legal entitlement whatsoever to information about their origins.
Perhaps less well known is the fact that social workers practising in this area have sought to provide some information to adopted people over the age of 18 years. This is despite the fact that under the Adoption Act 2010 (section 4(k)) their role is restricted to the provision of tracing services only.
In fact, there are currently no provisions in Irish adoption legislation which permit adoption agencies to share any birth information with adopted persons.
The absence of such legal regulation has resulted in a conservative practice whereby adoption social workers prepare background information (albeit limited), where possible, for an adopted person, at their request. The information currently provided is, in most cases and much to the frustration of adoptees, quite basic in nature and cannot identify any third party.
In effect, this prioritises the constitutional rights of the birth mother over the rights of the adopted person. While contemporary adoption files are more detailed in recognition of the need for accurate and meaningful information, older adoption files can range from a one-line entry in a ledger to a few handwritten pages contained in a file. Such files may include information regarding birth weight, head circumference and any relevant medical information.
In a quest to discover their true identities, adopted people have sometimes used the basic information provided by social workers to enable them to find their original birth certificates through the General Register Office.
It may be that they were given a somewhat unusual Christian name by their birth mother, and this might be enough to enable them to locate a birth certificate that matches the name given to them at birth as well as their date of birth.
Following the introduction of the GDPR legislation in 2018, new issues emerged in relation to the release of birth information for adoptees in Ireland.
In order to be GDPR compliant, social workers have been careful not to share any third-party information with an adopted person, without that party’s consent. Thus, social workers have had to reassess the level of personal information they provide to an adopted person so that they do not inadvertently release any information that may enable an adoptee to find their original birth certificate.
It is clear that the absence of a legal framework concerning adoption information and tracing in Ireland serves to perpetuate the unwanted legacies of the past.
For as long as there’s no legal framework in this area, adopted people will continue to be treated by the Irish State as marginalised second-class citizens.
Moreover, the current lengthy waiting lists are attributable to an under-resourced tracing service which is in fact not legally mandated to provide birth information.
It seems that not only did Ireland come late to legalising adoption compared to other European countries, but it has also been remiss in protecting the basic human rights of adopted persons. Other European countries have long resolved the issue of access to information, some as far back as the 1930s.
Our legacy is one only to be utterly ashamed of and instead of continuing this practice into the future, the Government should quickly move to ensure that the mistakes of the past are not continued into the future.
Dr Aisling Parkes is a senior lecturer at the School of Law, University College Cork. Dr Simone McCaughren is Assistant Professor at the School of Social Work and Social Policy, Trinity College Dublin.