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Law must enshrine child's right to birth information
Irish Times, Thu, Feb 21, 2013
OPINION: Adopted and assisted reproduction children become identity-seeking adults. Their access to facts is a basic right
Both at home and abroad, the issues of assisted human reproduction and adoption have been the source of controversy. While the debates they have prompted have many facets, there is one thread connecting them that has not received sufficient attention: children’s identity rights.
When a child is adopted or is born by means of assisted human reproduction, a layer of complexity is added to the child’s personal identity. In coming to terms with this complexity, either as a child or an adult, an individual can be confronted with a basic obstacle, namely the inability to access certain information regarding his or her biological parents.
This can be a source of considerable pain and anguish. It also raises significant questions regarding Ireland’s compliance with its international human rights obligations. As the Government considers legislation to fill the gap regarding access to information in the context of adoption and filiation arising from assisted human reproduction, it is essential children’s identity rights frame the debate.
A desire to know about one’s birth and origins is not a manifestation of simple curiosity. It springs from a need that runs deep enough to be a basic aspect of human dignity.
This reality is one that most of us never have to confront in our lives. It can, however, present itself for individuals who have been adopted or who have been born through assisted human reproduction. Their search for answers about where they come from has nothing to do with an insecurity about the families they grow up in; rather it is a perfectly natural response to grappling with unknowns that go to the very heart of who they are.
The fact that identity is of such vital interest to us all is reflected in the protection afforded to it by international human rights standards, most notably the UN Convention on the Rights of the Child and the European Convention on Human Rights. Article 7 of the UN convention provides that every child has a right to know and be cared for by his or her parents, as far as possible. Article 8 further requires that states respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law.
The United Nations Committee on the Rights of the Child has frequently indicated its concerns about children’s access to information regarding their birth and origins. States have been criticised by the committee for underpinning laws relating to adoption and assisted human reproduction with a presumption against disclosure of birth information, or for putting in place blanket prohibitions on the release of such information.
For example, when the committee examined the UK’s compliance with the UN convention in 2002, it expressed concern that children born out of wedlock, adopted children or children born in the context of assisted human reproduction did not have the right to know the identity of their biological parents.
The committee recommended that the UK take all necessary measures to allow all children, irrespective of the circumstances of their birth, to obtain such information to the extent possible. It is noteworthy that the UK subsequently amended the statutory framework governing assisted human reproduction to give greater protection to donor-conceived individuals’ right to access information regarding their birth and origins.
Identity rights are also protected by the European Convention on Human Rights. The European Court of Human Rights has held that under article 8 of the convention – which guarantees the right to private and family life – individuals have a vital interest, protected by the convention, in receiving the information necessary to know and understand their childhood and early development.
Matters of relevance to one’s identity and development for the purposes of article 8 of the convention include the identity of one’s parents. The court has also held that birth, and in particular the circumstances in which a child is born, forms part of the child’s and subsequently the adult’s private life guaranteed by the convention. While recognising that such a right exists under article 8, the court has also stressed that it is not absolute and must be balanced against the rights of other parties, where appropriate.
In the context of adoption, I recommended in 2009 that our laws include a general presumption in favour of disclosing information to adopted people regarding their birth and adoption. Based on the same principles, I believe Ireland should adopt a maximal approach to providing information to donor-conceived people regarding their birth and origins.
There is an international trend, supported clearly by the UN Convention on the Rights of the Child, against allowing anonymous donations in the context of assisted human reproduction; donor-conceived people should have a right to know the identity of their biological parents. This should be a guiding principle for the Oireachtas when the legislation regarding this issue comes before it.
Ireland has lagged behind many of its neighbours on identity rights. Only this week, we heard again of the indignity suffered by women who had their names and identities changed against their will. Part of the distress experienced by women in the Magdalene laundries reflects the same lack of respect for identity rights.
We must end disregard for those rights. Although it manifests in very different contexts, the basic principle underpinning identity rights transcends those particular situations. Fundamentally, providing in law for a person’s right to information regarding his or her birth and origins is about endorsing the idea that it should not be acceptable to deny individuals access to information about who they are and where they come from.
Emily Logan is the Ombudsman for Children
© 2013 The Irish Times
|“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
Alex Haley, Author of Roots