Mothers given priority over the children they gave away
One of the most significant questions in relation to Irish adoption law is whether it is fit for purpose.
The current legislation, the Adoption Act 2010, replicates the 1950s closed model or the 'transplant' model of adoption, whereby the adoption order severs all legal ties between the child and their family of origin and the child is 'transplanted' into a new family.
One well-documented gap in the law is a lack of legal rights for adoptees to information concerning their family of origin. Recent decades have seen major changes in society in the way in which children are both viewed and treated.
This is in large part owing to the children's rights movement which originated in the late 1980s, long after adoption was first legislated for in Ireland. In 1989 Ireland signed up to the UN Convention on the Rights of the Child. This enshrined in law, for the first time, the right of the child to know who they are and where they come from as well as issues such as medical background ancestry, and culture of origin. There has also been a revolutionary approach towards how Irish society communicates, networks and accesses knowledge on the worldwide web. The law has failed dismally in keeping abreast of these massive changes.
While struggling to operate within the parameters of the law, these wider developments have also created serious ethical dilemmas for social workers striving to strike a balance between the rights of adopted children (now adults) and mothers whose children were placed for adoption.
The situation is not clear-cut. Some mothers whose children were placed for adoption believe that they were given an undertaking that their privacy would be respected upon the adoption of their child. Other mothers would argue that they were strongly encouraged to place their children for adoption and the question as to whether full, free and informed consent was given is at the heart of this issue.
From an adopted person's perspective there are some who do not wish to look for more information, and some who do not wish to purse a reunion and others who spend their lives on a journey of self-discovery.
This is in stark contrast to modern-day adoptions, which are conducted in a transparent and open way, marking a move towards a more child-centred approach.
Under Irish law adopted persons do not have a legal right to non-identifying information (such as medical information) or identifying information (original birth certificate). Nor do they have access to an adequately-resourced professional support service. This has resulted in adoptees circumventing traditional approaches to gathering information, approaches which would ordinarily provide guidance and support from trained professionals.
Adopted people are no longer willing to - nor are they obliged to - put up with an under-resourced system which results in long waiting lists and frustration on their part. With the internet at their disposal and a wealth of knowledge at the fingertips, adoptees are doing their own social media searches. Unfortunately, this carries potential risks to the adoptee, as well as to others who may become part of the wider picture.
There can be concerns around the accuracy of information they come across, the absence of appropriate counselling, advice and support resulting in people becoming more vulnerable and more isolated in the process.
The discussions surrounding the proposed information and tracing legislation make this an opportune time to reflect on the gaps as well as the opportunities for proactive law reform in this area.
Due acknowledgement must be given to the rights of children, in particular the right to identity and protection from harm supported by a real injection of resources.
While this is all possible it leaves one burning questions not only for the legislators, but also for society as a whole: Why is it that the rights of some mothers to privacy and confidentiality (which are not absolute rights) are given priority over the rights to an identity of their children placed for adoption?
Dr Aisling Parkes and Dr Simone McCaughren presented a paper at a major adoption conference in UCC this week.