by Mike Milotte
Yet a huge anomaly seems to hang over the Supreme Court judgment, for while the Court upheld a right to privacy, the law of the land explicitly prohibits privacy in matters of birth. By law, every birth that occurs in Ireland must be registered in the Register of Births, Deaths and Marriages, and each entry must include the name and address of the child’s mother, whether or not her child was subsequently adopted. Any member of the public – and that includes all adopted people – may view the register on demand. And for all mothers, regardless of whether their child was adopted or not, giving false information to achieve privacy – such as a bogus name or address – is a serious criminal offence. In the matter of giving birth, the law on registering the basic facts makes no distinction between women whose children were given up for adoption and women who kept their children. They are all treated equally. It was the Supreme Court that said those who gave their children up must be treated differently by being afforded a constitutional ‘right to privacy’. But even though all birth certificates are public documents, the problem for an adopted person trying to access the public record of their own birth is that they are not permitted to know their natural mother’s name, and probably don’t even know where they themselves were born – the two key ways of accessing information in the register. This is a consequence of Ireland’s closed adoption regime. And if an adopted person asks the Adoption Board (now Authority) for a copy of their birth certificate, the Board is not legally obliged to provide it – even though it is a public record. In fact, for many years the Adoption Board simply refused all requests for birth certificates without exception, asserting that the law precluded them from doing otherwise. But the courts have held that by imposing a blanket ban on the release of birth certificates, the Board was misapplying the law, and they instructed the Board to assess each application on its merits and act in the best interests of the adopted person. As a result of this judgment, the Adoption Authority says it now issues more birth certificates to applicants than it refuses, including in cases where the natural mother has objected. Although the numbers involved are small, this seems to make nonsense of the Supreme Court ruling, and provides further proof that the whole system is in disarray. (Where a birth certificate was issued to an adopted person without the natural mother’s consent, that person was required to swear an affidavit that they would respect their natural mother’s privacy and agree not to try to contact her other than through the Board or the original adoption society.)
The 1998 judgment also sits unhappily alongside the European Convention on Human Rights as well as the UN Convention on the Rights of the Child, which the Irish State has ratified and which enshrines the right of all children to know their parents and to establish their full identity. Under the circumstances, it seems astonishing that the 1998 Supreme Court ruling has been allowed to go unchallenged by a State which purports to take its international obligations seriously.
The powers that be, of course, will point to what they regard as significant advances since the American adoption story first broke putting the whole issue of adoption information firmly on the agenda. First, there is now a National Adoption Contact Preference Register – as promised by Austin Curry in 1996. But it took nine years to get it up and running, and in the course of drafting enabling legislation, successive Fianna Fail governments went so far as to propose that an adopted person who tried to contact a natural parent where the parent had registered a desire not to be contacted, and likewise a parent who tried to contact reluctant children, would be liable to prosecution for harassment under the Non Fatal Offences Against the Person Act. This is a criminal offence, potentially punishable by imprisonment. This astonishing proposal was contained in legislation first submitted in 2001 by then Minister of State for Children Mary Hanafin and subsequently championed by her successor in that role, the late Brian Lenihan. The proposal was not proceeded with, largely it seems because of the storm of protest it engendered rather than because its authors realised they had made a dreadful faux pas.
It was March 2005 before a National Adoption Contact Preference Register was launched (by Brian Lenihan) amid a fanfare of publicity. Every home in the country was sent a leaflet about the new service. Adopted people, natural parents, grandparents and siblings were all invited to register, and where there was a match, contact would be facilitated. The leaflet was to be re-circulated at regular intervals to encourage more and more people to register, but it never was. The rate of matching people who do register has been incredibly slow, and the numbers tiny. Some 50,000 people have been adopted in Ireland. Each of them had two natural parents and four grandparents and most of them probably have natural siblings. Yet, at the time of writing, only 450 matches have been achieved through the official register, involving 900 people – less than a third of 1% of the 300,0 or so people who could have joined the scheme.21
The Adoption Authority maintains the Contact Register, but when it matches two people who are looking for each other – two consenting adults – it does not put them in touch directly but refers their details to the adoption agency that arranged the adoption in the first place, and there they join a queue, waiting for advice and counselling before they are put in touch with each other. For some adopted people and natural mothers, having to go back to the very organisation that separated them – perhaps in a legally and ethically questionable way – is a deeply frustrating and alienating experience. Yet the Adoption Authority seems content to leave matters as they are.
Another frequently cited reform for making good past wrongs has been the creation of nationally applicable standards in the area of information and tracing for adopted people and their natural parents. For many years past one of the most frequently heard complaints from those searching for a parent or child was that the adoption societies who were charged with helping people in this area operated widely different standards. Put bluntly, some offered a modicum of assistance while others were downright obstructive. This problem was highlighted most dramatically in 1996 in the wake of the American adoption story, when frustrated and angry adoptees and natural mothers told of how they were consistently lied to by the adoption societies – and by specific nuns running the societies. Lives already troubled were being made intolerable and urgent action was needed to bring order to the chaos. But it was to be 2007, eleven years later, before the Adoption Board, along with the adoption societies, initiated the Standardised Framework for the Provision of a National Information and Tracing Service. This framework sets national standards and provides guidance for those offering information and tracing services around the country, but at the time of writing four years later again, the Standardised Framework, which only reached the piloting stage, was again under review. What is more, it remains entirely voluntary. If its attempt to standardise procedures were to be really effective, the guidelines would have to be enshrined in legislation.
The one certain way to clean up this appalling muddle in the area of adoption rights would have been for the Oireachtas to legislate – as Justice Ronan Keane pointed out back in 1998.
In almost every western democracy but Ireland adopted people have significant rights to information on their birth records. In Scotland, all adopted people have been entitled to their original birth certificates as of right on reaching the age of 17, a right that was extended to adopted people in England and Wales by the 1976 Adoption Act. In Northern Ireland the 1987 Adoption Order extends the same rights to adult adopted people there. In Germany similar rights apply from the age of 16. Belgium and Portugal also allow access to such information as of right. Since 1956, adopted children in Holland could access their full adoption records from the age of 14. In 1979 this was lowered to 12. In Germany the age has always been 16. An adoption information commission in Canada found in 1985 that the facts surrounding an individual’s adoption belong to that person, no matter where they are stored, and also that revealing those facts had not been shown to cause harm.
In 1985 New Zealand introduced an Adult Information Act p
ermitting adopted persons, on reaching the age of 20, to apply for information on the identity of their natural mother. Natural mothers may likewise apply for information on the adoptive identity of their 20-year-old offspring. Both sides have a right of veto, but in practice it is rarely used. In the first five years of the Act, 8,500 reunions were facilitated, and of these only six resulted in serious complaints.22
Ireland’s most recent legislation in this area is the 2010 Adoption Act, steered through by Fianna Fail’s Minister of State for Children, Barry Andrews. The new Act was heralded by the chairman of the Adoption Authority, Geoffrey Shannon, as a ‘world-class piece of legislation’ that would mark a ‘new era’ for Ireland. But, spectacularly, the Act failed completely to address the issue of adoption information and the right of people adopted in the past to know their origins. To the astonishment of many it also failed to legislate for open domestic adoptions in the future, although an earlier Act in 1991 allowed for openness in inter-country adoptions, thereby creating a two-tier system, with children adopted from abroad enjoying greater rights to know their origins than children adopted within Ireland. (While open domestic adoptions do now take place in Ireland, they have no legal basis and depend entirely on the goodwill of all concerned.) Commenting on the 2010 Adoption Act, the Adoption Rights Alliance remarked: ‘Barry Andrews managed to enact an Adoption Bill without including a single provision for adopted people’s rights.’ Mr Andrews countered: ‘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.’ He, too, cited the 1998 Supreme Court judgment as the critical determinant of State behaviour in this area and ended by saying: ‘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.’23 That promise, as we have seen, has been made repeatedly without fulfillment, and Mr Andrews never got the opportunity to prove he would deliver where others had failed. His party, Fianna Fail, which had ruled without interruption since 1997, was voted out of office in the election of February 2011.
In March, Ireland got a new Government – a Fine Gael- Labour coalition. Alan Shatter, an expert on family law and long-time critic of the chaotic nature of Ireland’s adoption legislation, was appointed Minister for Justice. On the appearance of the first edition of Banished Babies in 1997, Mr Shatter, then a backbench TD, wrote a letter of congratulations. ‘On a personal level,’ he told me, ‘I have found the lethargy shown by the State in addressing the issue of access to original birth records and the provision of information to facilitate those sent abroad to trace their origins extremely frustrating.’ In the new administration too, Frances Fitzgerald – another forceful critic of past adoption practices – was given the first ever full cabinet post as Minister for Children. ‘It is universally accepted,’ she had told the Dáil in 1997, ‘that denial of access to information about one’s origins is denial of a basic human right... These cases coming to public attention reveal considerable human unhappiness and heartbreak, and the minister must now introduce measures to deal with this. We must have action at official level.’24
With two ardent champions of adopted people’s ‘right to know’ now occupying the very positions from which change must come, radical reform seemed possible. The ball was finally at their feet. But, yet again, the ball has been kicked into touch. Questioned on Today with Pat Kenny on RTÉ radio shortly after coming to power, Ms Fitzgerald indicated she might legislate for future adoption rights, but would do nothing for people adopted in the past. ‘I think you can bring in tracing legislation,’ she said, ‘not going backwards but from current best practice going forward that the child would have access to birth certs, to detailed information.’ And she acknowledged how badly this would go down among the people whose cause she had seemed to support 15 years earlier: ‘There will be people who will be very disappointed hearing that,’ she told RTÉ.25
One of them was Grainne Mason who immediately wrote to the papers: ‘I know the hurt, upset and sheer devastation this decision will bring to the thousands of adopted adults who are searching... Our mothers carried us for nine months, gave birth to us, cared for us for days, weeks, months and, in some circumstances, years before we were given up for adoption and to be told that we will not have a right to know her identity is simply not right. We are not asking for her bank details, credit card account, alarm code or passwords, just her name and where she (and indeed, we) come from. Is this too much to ask for?’26
Speaking in the Dáil on 21 July 2011, Ms Fitzgerald seemed to indicate that her thinking on all of this was dictated by the complexities of 1998 Supreme Court judgment which found that unmarried mothers whose children were given up had a constitutional right to privacy. ‘Legislation to provide for information and tracing,’ she said, ‘is in preparation within my department and is a priority.’ But then came the inevitable rider: ‘This is a sensitive and complex area, and it will be necessary for the legislation to balance the constitutional rights of mothers whose children were adopted with those of adopted people seeking to trace their birth families.’ The claim that the matter is ‘complex’ is one that was rejected nearly fifteen years previously by an acknowledged leading professional in this area. ‘I want to nail the suggestion that this is a hugely complex issue,’ the expert said. ‘It is an issue that has been properly and adequately addressed in a variety of other countries with the degree of insight and sensitivity...’ He went on, ‘I urge the Minister to proceed hastily with bringing the necessary legislation before the House.’27 The speaker on that occasion was family lawyer, now Justice Minister, Alan Shatter.
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Many adopted people and natural mothers who continue to feel frustrated by the entire system had hoped that the 1998 judgment, which they see as seriously flawed, might have been challenged rather than taken as gospel.
It may seem astonishing that fifteen years after the American adoption story first broke, putting the whole adoption information issue onto the political agenda as never before, there has been so little advance. Legal obstacles and concern for the ‘sensitivities’ of all involved may indeed play a role, but in continually prevaricating over access to information that might help reunite adult adopted people and their natural mothers, the State and the adoption societies are also protecting themselves. It is now clear that not everything in the past was done in a legal and above-board manner. The conditions in which many young mothers ‘consented’ to the adoption of their children could well mean the consent itself had no legal validity. Others never signed consent documents at all, but had their signatures forged. Yet consent – and informed consent at that – has always been a fundamental requirement in Irish adoption law since the first Adoption Act came into force in January 1953. On the other side, there are adopted people returning with unhappy stories to tell, of adoptions that did not work, stories that might raise awkward questions about how individual adoptions were arranged and how unsuitable people managed to acquire children, particularly when the State had the final say before adoption passports were issued. Other adopted people have learned from their adoptive parents that considerable sums of money were sent to the nuns back in Ireland, a practice that has never been acknowledged or accounted for by the recipients who fear being accused of ‘selling’ the babies in their care. And, again, the State has never shown any interest in investigating this aspect of the baby business.
Under all these circumstances, the prospect of aggrieved but frequently submissive natural mothers getting together with unabashed and confident adult adoptees to ‘compare notes’ cannot be a welcome one for agencies – whether of Church or State – whose past practices could not withstand close scrutiny. By keeping mothers and offspring apart, a multitude of past sins, errors and shoddy practices by all those involved can be kept from view.
In case anything written here be thought of as insensitive to the f
eelings of natural mothers who are still desperately trying to keep their secrets, it should be said that contemporary research suggests a greater openness on the part of natural mothers than is frequently assumed. In one major investigation, three out of every four natural mothers contacted reacted with moderate to strong enthusiasm. Only one in six refused a reunion, but in the end, all were coaxed round. Other studies suggest that only one natural mother in 10 will refuse to meet her offspring, and for most of these mothers the reasons are fear of rejection and feelings of guilt rather than an absolute desire for secrecy.28 Anecdotally, too, there is considerable evidence to suggest that natural mothers who at first resisted contact have experienced great relief once they have changed their minds. Gentle persuasion, and an opportunity to discuss issues with their peers – rather than the dissuasion some Irish adoption societies are believed to have engaged in – can be the essential ingredient.