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Barry Andrews Opinion Piece, Irish Examiner, 23rd April 2010

Recent 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.

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 cases distress.

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 rights.

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.

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 and facilitated.

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 the adoption)

* 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 basis.

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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“In all of us there is a hunger, marrow-deep, to know our heritage, to know who we are and where we have come from. Without this enriching knowledge, there is a hollow yearning . . . and the most disquieting loneliness." 

Alex Haley, Author of Roots 





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