Dr David Kenny, Assistant Professor of Law at Trinity College Dublin, argues that the government’s legal advice on the rights of adopted children is flawed and that a referendum on the issue is not necessary.
As the country looks at the Mother and Baby Homes Commission report and once again relies on Ireland’s dark institutional past, one issue that urgently needs to be addressed is access to adoption records.
However, there is a risk that, rather than rapid legislative reform to allow adopted persons access to their files, we will begin a long process of holding an unnecessary constitutional referendum.
Irish Adoption Act
The Adoption Information and Tracing Act – allowing adopted people to access their records – has long been criticized.
Under current law, adopted persons are not entitled to their birth certificate or to information about their family of origin.
Adopted persons and their advocates argue – rightly in my opinion – that this is fundamentally unfair and a violation of their fundamental rights.
Under the last government, Minister of Children Katherine Zappone tried to reform these laws. After extensive consultation with adopted persons and birth mothers, she sought to allow a broad right of access to information for adopted persons, believing this essential to assert their rights.
She was prevented from going down this route by the former attorney general, who apparently said allowing such wide access would be unconstitutional as a violation of the privacy rights of such individuals’ birth mothers. He insisted on a restricted right of access, on a case-by-case basis.
The constitutional question
The current government is committed to revisiting the issue, but the constitutional objection resurfaced in the Commission’s report.
The Commission said that in its view, an unqualified right of access to information for adopted persons should be recognized.
However, citing the Attorney General’s opinion that “it was constitutionally unacceptable to allow unrestricted access”, the Commission said it seems likely that a referendum will be needed to amend the Constitution to allow this.
I, along with many other constitutional scholars who have examined this issue in detail, that this is incorrect: no referendum is necessary, and the Oireachtas can legislate for an unqualified right of access to records.
The attorney general’s concern rests on a valid and important consideration: the privacy rights of birth mothers, some of whom do not want their identities revealed, and perhaps expected that this would never happen.
But the rights of adopted people to know their identity are just as important, and this is a situation where rights clash: we cannot stand up for both at the same time.
Flawed AG argument
The Attorney General’s view that adoptees cannot be granted unlimited rights to information is based on a Supreme Court ruling in the late 1990s.
In this case, known as IO’T v B, the plaintiffs attempted to obtain records from the Rotunda Girls Aid Society, which had arranged their adoptions, which would identify their birth mothers. The Company refused.
The Supreme Court said that the two people involved in the adoption of this type have constitutional rights at stake: the right of the adopted person to know the identity of their birth parent and the birth mother’s right to privacy. .
However, this right to privacy was not absolute, and if the Circuit Court – which had the case before it – found that the rights of adoptees were stronger, the information could be disclosed. The Court remitted the case to the lower court to consider this issue.
It appears that the former attorney general indicated that this case means that the Oireachtas cannot legislate to allow unrestricted access to birth records in all cases, as this would not sufficiently take into account the privacy rights identified. by the Supreme Court. If this is correct, the Constitution should be amended to allow such access.
But the IO’T case doesn’t say so. The case concerned the balance between these two sets of rights in a particular case where no legislation had been adopted to resolve this conflict of rights. The Court did not comment on what could be done in such legislation. The Court in fact emphasized that the right to privacy of biological mothers could not be absolute.
Political, not legal
Courts have repeatedly emphasized, in many different cases, that it is for the Oireachtas, not the judiciary, to make complex political choices and to balance competing rights with the common good.
The Oireachtas, being elected by and accountable to the people, has a better understanding of social policy and can consider the needs of different groups in a much broader way than courts can in individual cases.
When two constitutional rights directly conflict and, as in the context of adoption information, cannot be reconciled, the courts have held that the legislature must decide how to resolve this conflict, which right to favor.
Only if the solution chosen by the Oireachtas is irrational or deeply unfair will the courts step in and say the law is unconstitutional.
All of this means that the Oireachtas could decide that the rights of adoptees should be promoted and their information should be accessible. This would not ignore the rights of birth mothers, but say that, as important as their privacy rights are, the rights of adopted persons in this context must take priority.
This was the approach that Minister Zappone said was the best, after extensive consultations with all interested parties. This approach is also favored by the Commission. While the Oireachtas also agrees with these determinations, there is nothing to indicate that the Constitution prohibits it from legislating to do so.
We don’t need a long referendum process to enact an unnecessary constitutional amendment to achieve a fair result for adoptees; we can just pass a law. These measures have been the subject of campaigns and debates for years, and we should not delay them any further.
If there are constitutional doubts about such legislation, the President could send the Supreme Court back to decide the issue once and for all.
Unless and until the courts say such a step is not authorized, the attorney general’s opinion should not be allowed to prevent these adoptees from getting the information they want and deserve.
- Dr David Kenny is Assistant Professor of Law at Trinity College Dublin and co-author of Kelly: The Irish Constitution. This article first appeared in TheJournal.ie.