Andrews Opinion Piece, Irish Examiner,
23rd April 2010
media coverage on the highly sensitive subject of adoption has focused
on tracing and the child's right to access information in respect of a
birth parent. Ireland had by international standards one of the highest
rates of adoption in the second half of the last century.
Many of those children were placed for adoption against a
backdrop of secrecy and
stigmatisation. The accusation that the Government is at pains to
preserve the ethos of secrecy redolent of a darker period in Irish
history is wide of the mark.
Legally, there was no differentiation between a
family comprising a child who was adopted and a family with children
born to the parents. This was not the experience in most other European
jurisdictions. Contact with the birth parents was expected, encouraged
The purpose of the Adoption Bill 2009, which is currently before the
Oireachtas, is to give force of law to the Hague Convention on
Intercountry adoption and to consolidate Irish adoption law for the
first time since adoption law was introduced in in 1952. For some time,
it has been Government policy to separate the complex issues of tracing
and contact from the incorporation of the Hague Convention and
establishment of the Adoption Authority.
As far back as 2003, when an Adoption Legislation Consultation Paper was
published by the then Minister for Children, Brian Lenihan, two pieces
of legislation were envisaged. In the introduction to that consultation
paper, Minister Lenihan referred to two pieces of legislation:
"/the first to provide for ratification of the Hague Convention on
Intercountry Adoption and to make changes to the role and structure of
the Adoption Board and the second to provide for a structured and
regulated way of providing access to information and contact for those
affected by adoption/".
The National Adoption Contact Preference Register (NACPR), established
in 2005, represents the first step in providing access to information.
It should, in my opinion, be placed on a statutory basis. Contact is an
incredibly sensitive issue and in some cases may involve counselling and
other supports. No matter how great the desire to meet a birth parent,
unregulated contact can give rise to real disappointment and in some
We intend to build on the NACPR and learn from the experience gained by
the Adoption Board in the operation of the register.
On March 3^rd , I stated during the Committee Stage of the Adoption Bill
at the Select Committee on Health and Children that I intend to bring
forward legislation specifically on the issue of tracing. This important
fact has been ignored in media coverage of this issue.
Despite the fact that many adoptions were bound up with the stigma that
attached to unwanted pregnancy, the rights of birth parents have to be
considered and respected. The matter has been examined by the Supreme
Court. It recognised "a person's unenumerated constitutional right
to know the identity of his or her natural mother". However, the
Supreme Court also stated that this had to be balanced against a birth
mother's right to privacy and anonymity.
The Supreme Court stated that neither set of rights were absolute. In
making its decision, the Court pointed to certain criteria that should
be considered in deciding whether to release information including: the
circumstances surrounding the birth mother's loss of custody of the
child; the current status and circumstances of the birth mother and the
potential effect upon her of the disclosure of her identity; the present
circumstances of the natural child; and the opinion of the adoptive
parents or other interested persons.
A similar approach was adopted by the European Court of Human Rights in
the only decision of the Court on the release of information concerning
adoption. Like so many areas of Constitutional law, rights and
entitlements are not black and white and involve balancing competing
Commentators have pointed to other jurisdictions to compare approaches
to tracing and contact. At a glance, Ireland appears to perform poorly
in terms of facilitation and assistance to children attempting to
contact birth parents. However, adoption in Ireland was traditionally
viewed as "clean break" adoption. By "clean break",
I mean that all ties with the birth parents were severed when the
adoption order was made.
Regardless of our view of adoption in the past, we must take cognisance
of the position of the many thousands of parents, who placed children
for adoption. Though not widely reported on in the media at the time,
huge concerns were expressed at the time of the consultation process in
2003 especially around the specific proposals that:
* An adopted person will have the right to his/her birth certificate and
personal information (i.e. about him/herself) from the file the file
contains all existing personal information and documentation relating to
* A birth parent will have the right to the adoption certificate and
personal information from the file.
As already mentioned, these women have a constitutional right to privacy
and indeed many consents to adoption were given specifically on this
Tracing and contact should be placed on a statutory footing. For many
adopted children, there is a very deep desire to trace and contact birth
parents. That should happen in a regulated manner, where there are clear
parameters and reasonable expectations on all sides.
Given the sensitivities of the matters at hand, I believe that it is
appropriate that a specific piece of legislation be drafted to
respond to the needs of children adopted domestically in the past,
children who are adopted through intercountry adoption and children who
will be adopted in the future. In order to comply with Ireland's
international obligations, it is my intention to introduce legislation
that will balance in a proportionate manner the rights of all parties
involved in adoption information matters – the child, the birth
parents and the adopted parents.
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