Adoption reforms: Why a referendum may be on the cards

Tuesday, December 10th, 1991: Ireland was in the midst of a vitally important debate about an agreement that would create the European Union as we now know it.

The front page of The Irish Times carried an update from the opening day of a European summit where the Maastricht Treaty was being drafted, overhauling the then European Community. British concerns about the plans were noted in the coverage.

In the Dáil that day, Fine Gael TD Nuala Fennell took to her feet to raise a different matter.

“Action is long overdue,” she said. “The substance of this matter is that our adoption procedures are not coping with significant emerging developments which involve people who were parties to legal adoptions in years past and who are now trying to trace their blood relatives.

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“Because neither our adoption laws nor our structures can cope with this development, our system is blind and deaf to these people.”

Private investigators were being tasked with tracking down unsuspecting family members in insensitive ways, she said. “There is no voluntary contact register in which people could indicate their wishes in regard to future contact.”

Responding, Fianna Fáil minister of State Chris Flood said there was a fundamental issue around the disclosure of identifying information, with some warning him that contact should be facilitated only with the consent of both the adopted person and the birth mother.

Nearly 30 years later, the challenge of balancing the rights of adopted people and birth mothers has not been solved. It seems astounding, but we have been grappling with this issue since the effective birth of the European Union.

Adoption information Bill

Minister for Children Katherine Zappone, an Independent member of the Cabinet, was not long in her new role when she attempted to revive legislation to give adopted men and women access to their information. The Adoption Information and Tracing Bill was reintroduced in the Seanad in May 2017.

Significant problems soon emerged. One of the more controversial aspects involved an undertaking that adopted people would be forced to sign. In that, they would promise not to contact their natural parents in order to get their birth cert, if that was the parent’s wish. Birth parents would be allowed to invoke compelling reasons as to why their information should not be released, where such a release would be likely to endanger their lives.

Adoption Rights Alliance (ARA) said the proposals were insulting. The proposition was dropped.

Ms Zappone changed tack. Under a revised plan, contact would be made with all birth parents to find out whether they had any objection to information being released. If they did not consent, both parties would be given the opportunity to make their case before the Adoption Authority of Ireland.

The authority would make a determination in the case “against a range of criteria by reference to Supreme Court jurisprudence”. Either side could appeal the decision to the Circuit Court.

This plan, too, drew ire. Over the last number of months, TDs and senators have reported being inundated with representations from adopted people and from advocacy groups. Some of the emails and letters contained personal stories; others were clearly part of a larger campaign.

On June 18th, ARA, in an email to TDs, said the Bill should be shelved. They said no legislation would be better than the Government legislation.

The next day, Ms Zappone announced to the Seanad that the Bill was being put on ice while she tried to find a way forward.

Speaking to The Irish Times, she said this was probably the most delicate and sensitive law to come before the Oireachtas since TDs and senators passed abortion legislation last December.

“I and my officials wanted to find a way to bring forward amendments to the Bill that would be acceptable to adopted people. We heard what they were finding most offensive and a couple of those things are now not part of it,” Ms Zappone said.

She is working with Labour senator Ivana Bacik on a new amendment whereby the State would carry out what would effectively be a six-month advertisement. Birth mothers who gave children up for adoption would be asked to come forward and object to the disclosure of information. They would have those six months to do so.

If an application was then made and the birth parent objected, an information session would be held but the details would be released anyway.

Ms Zappone said the early indication from the Attorney General was that the first part of this may be possible. Red flags are emerging about the second part.

“We cannot have a law that provides unrestricted access to information about one’s identity to the adopted person,” Ms Zappone said.

“I will not be bringing in amendments that provide for unrestricted access. I cannot do that as a Minister with the legal officer of the Government, the Attorney General, saying that you can’t do that.”

Information veto

Susan Lohan of ARA said there were about 120,000 adopted people in Ireland who had a right to know their personal information "and nothing is more personal than to know your identity".

“That is an information veto, and that is completely at odds with the principles of GDPR and EU conventions on the right to identity. These are public records.”

Ms Zappone told the Attorney General her opinion that the right to information carried more weight than the right to privacy. But she said she was keenly aware of the other viewpoint that the wishes of the birth mother must be respected.

The Minister took the unusual step of appearing before a Fine Gael parliamentary party meeting on June 26th. She read out a letter one TD privately said made him think a bit differently about the debate.

Sitting in her office on Wednesday, Ms Zappone said it was from a woman who gave her child up for adoption 50 years ago. Her siblings didn’t know about it, and she referred to it as her “sin” and “shame”.

“What do I do now? I have no rights. And for the second time, I have no say in what is to happen when the files are thrown open and I’m outed as a heartless woman. So please will you say something to us? What are we supposed to do,” the woman asks.

She signs the letter as a “terrified mother”.

“I got an email from another birth mother who said that she hears what’s going on and that she gave a child up for adoption and though she has fear too, she believes that if her child now came to seek her identity, she wouldn’t stand in the way,” Ms Zappone said.

The Minister said the Attorney General would “try to help me find a way to do this, in the least offensive way as possible with the understanding that their right to identity is so central to who they are”.

Referendum

It remains to be seen if this is legally doable. If it is not, Ms Zappone said, a referendum would have to be held.

“The referendum would state very clearly the right to identity of the child in some way,” she said. She wants to try pass the law first, with plans to table new amendments when the Dáil returns after the summer recess. And yet a referendum may be the answer to finally decide which right trumps the other: privacy or information.

There are major concerns about waiting for a referendum. The Minister said that because of GDPR legislation, Tusla is having difficulty getting access to documents such as baptismal certs.

“Often, if they don’t have the birth cert, that is the way they find the name of a birth parent and because the GDPR legislation does not allow for that kind of sharing of information now, we need a law that actually allows the search for information.”

Ms Lohan said there were concerns about whether Tusla had the resources or skill set to track down birth parents to ask them these questions.

She said holding a referendum was akin to “using a sledgehammer to crack a nut”. Adopted people should not potentially have to debate religious groups during a referendum campaign given the well-documented suffering of many at the hands of Catholic Church, she said.

Ms Zappone said she felt the same way about the same-sex marriage referendum “so I understand what they’re saying from the inside out”.

With the weight of the Constitution blocking a more liberal Bill, however, it may be the only option.