Adopted people have an unequivocal human right to their identity

Geographical distance does not dim the huge emotion contained in the pages of the Report of the Mother and Baby Homes Commission, and the responses of survivors, residents, and their families.

Out of deeply held respect for survivors and their families, I wanted to hear these most powerful of voices before commenting.

The State holds much of the responsibility. There are actions of reparation which must be done and be rooted in the fundamental belief of the equal human rights of all people.

This must include an urgency around adoption legislation grounded in adopted people’s unequivocal human right to their identity.

The complex legal and political background on this issue is worth reflecting on as it could lead to informed decisions now.

In May of 2017 the Adoption (Information and Tracing Bill, 2016) was introduced in the Seanad.

It did not contain provisions for adopted people’s unconditional access to information about their identity, because the Attorney General’s interpretation of our Constitution was that the privacy rights of mothers must also be recognised, and that it is the duty of lawmakers to balance those rights appropriately.

The bill as originally drafted sought to provide a fair mechanism for balancing these competing rights.

However, strong criticism made by adopted people, advocates, and others, made clear that the original draft failed to achieve this.

Over the course of the next two years, department officials and I went back and forth numerous times with the Attorney General’s office to find mechanisms to balance fairly these competing rights.

The Mother and Baby Homes Collaborative Forum was also established for the survivors and residents of these institutions to inform Government on related matters, adoption legislation being a prime theme.

Their views had a profound impact.

Yet, despite an exchange of six lengthy letters between the Attorney General and myself, he remained unconvinced about unfettered access to birth records and information for adopted people.

A significant turning point for me came during my participation in an international conference in Boston College on ‘Transitional Justice: Recognition, Truth-telling and Institutional Abuse in Ireland,’ held in November 2018, organised by Professor James Smith and others.

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International and Irish experts, some of whom are adopted, took part in an extensive debate on Ireland’s adoption regime.

Upon my return, I again engaged the Attorney General outlining the strong opinion that we needed a different approach.

The views expressed by adopted people about their life experiences and their interaction with the State and church officials and agencies were deeply disturbing and had to be taken into account.

It was my judgment that the approach in the Bill, while not intended to do so, would extend into the present the harm that adopted people, through legal or illegal means, had experienced in the past.

While the right to privacy for mothers should not be disregarded, it should not take priority.

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.

The legal response from the Attorney General formed the basis for Government amendments, which although given the fullest consideration, did not convince adopted people, their advocates, nor the senators.

We were once again in a bind as Article 30 of the Constitution is clear, the Attorney General is the legal adviser to the Government on matters of law.

Consequently, a minister is deemed to seek and rely on the advice provided.

Pausing the legislation gave some space.

The Fine Gael and Fianna Fáil Parliamentary parties, senators, adopted people and their advocates, mothers who had given birth in the homes, social workers as well as academic and practicing lawyers were all briefed and consulted.

Writing to the Attorney General for what would be a final time, I set out legal advice given by Irish experts, including the Government’s Special Rapporteur Conor O’Mahony, David Kenny of TCD, NUI Galway’s Maeve O’Rourke, and Fergus Ryan of Maynooth University, among others.

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The argument was put forward for a legislative framework that should favour disclosure of information and birth certificates for adopted people.

Legal reasons for this view were provided together with an appendix outlining all the ways in which we could have regard to the privacy rights of mothers, without interfering with the adopted people’s fundamental human right to identity.

The response was lengthy but ultimately rejected our view.

Facing the reality of politics and the timeline of Government, it was becoming clear I would not be the minister to progress this legislation.

The view of the current Attorney General that we do not need a referendum is to be welcomed.

In order to ensure no more legal pitfalls ahead, Minister O’Gorman and his officials would be well advised to consider the at-times lengthy correspondence of the past when preparing any ‘new’ bill.

In doing so they can keep a sense of urgency in providing an informed solution to a complex human rights challenge, which needs to be settled.

Katherine Zappone lives in New York. She was minister for children and youth affairs between 2016 and 2020

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