It is almost three years to the day since former minister for children Katherine Zappone took the unusual step of appearing before a Fine Gael parliamentary party in an attempt to explain a complicated issue.
Zappone, whose support as an Independent was instrumental to the last minority government, was grappling with a new law which would give adopted people access to their birth records. Her voice wavering with emotion, she told Fine Gael TDs and Senators of a letter she received from a woman who was living in fear of such legislation being passed, after she had given up her child decades previously. She told the room of the difficulties she was facing in drafting the law. In essence, it came down to the same issue time and again: one person’s right to identity versus another person’s right to privacy.
The issue was not new: this very debate has been ongoing in both the Dáil and Seanad chambers for at least 30 years, an astounding length of time for an issue of such sensitivity and importance. When Zappone reintroduced the Adoption Information and Tracing Bill in the Seanad in May 2017, it seemed like progress was finally on the cards.
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On the contrary, the plans became mired in controversy. It emerged that, in order to balance the privacy versus information issue, adopted people who wanted to get access to their birth information would have to sign an undertaking, in certain circumstances, that they would not contact the birth parent.
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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. Unsurprisingly, the proposals were labelled as insulting and were dropped. Another plan, which was also ditched, would see all birth parents contacted to see if they had an objection to information being released. If they did not consent, the Adoption Authority of Ireland would make a determination on the case.
And so in the summer of 2019, the plans ground to a halt and the Bill was put on ice. Speaking to the Irish Times that summer, Zappone put it bluntly when she said: “We cannot have a law that provides unrestricted access to information about one’s identity to the adopted person.”
She said she could not do it, and the former attorney general had made that clear, she said. For a time, it looked as though a referendum was on the cards but then early 2020 brought an election, a pandemic and a new Government.
It took the publication of the Mother and Baby Homes report to put the issue at the heart of political debate in January 2021.
Intensive work on a new Bill began between the new Minister for Children Roderic O’Gorman and the new Attorney General Paul Gallagher. Mr Gallagher assigned a number of legal experts to look in-depth at the constitutional issues.
After months of work behind-the-scenes, O’Gorman brought the heads of a new Bill to Cabinet in May 2021 and revealed a major change in tack: the Coalition would be relying on European data protection legislation to open up the records. For the first time, the right of access to birth certificates and other birth and early life information would be enshrined in law.
The intervention of the current Attorney General proved instrumental, as did the sensitive handling of the topic by the Minister. O’Gorman engaged in a detailed and lengthy consultation with representative groups, adopted people and people affected by the proposed law, and he set up an implementation group which included representatives from the Adoption Authority of Ireland and Tusla to get the ball rolling on how organising tracing would work.
The legislation was also examined in detail by an Oireachtas committee.
The new law provides for full access to birth certificates and birth information. This right is not restricted, and people will, for the first time, have an unqualified right to their information.
One of the biggest criticisms has been that the new law still requires an information session if a birth parent objects to the release of information. The difference this time is that the information is released anyway. The reason for the inclusion of the information session came back to that same debate around privacy and information.
It is the Government’s contention that failure to provide that balance within the legislation risks it being found unconstitutional.
It has been a long road for adopted people who rightly want access to vital information about their birth and their early life. On Wednesday evening, the new law passed all stages in the Oireachtas. This law, which will soon be signed by the President and enacted, will not be the end of that road but it does represent an immense milestone that was only recently thought to be legally impossible.
