LAST UPDATE | 12 Jan 2022
LONG-AWAITED LEGISLATION that will grant adopted people access to records about their birth and early life has been published.
The Birth Information and Tracing Bill was launched by Children’s Minister Roderic O’Gorman today, the first anniversary of the publication of the final report by the Commission of Investigation into Mother and Baby Homes.
Speaking at the launch in Government Buildings, O’Gorman said the new Bill represents “a massive step forward” and will grant adopted people access to information and documents “that so many of us take for granted as part of our personal stories”.
The Bill provides for the release of the birth certificate, birth information, early life information, care information and medical information for adopted people, as well as the release of information to a next of kin of an adopted person who died as a child.
It also provides for a statutory tracing service for anyone who wishes to make contact, or share or seek information about their birth and early life.
The Bill’s requirement for an information session where a parent has expressed a no-contact preference now no longer needs to be a physical meeting; the revised Bill makes provision for this to take place by means of a short phone call or video call if desired.
The phone call will be between an adopted person and an employee of Tusla or Adoption Authority of Ireland (AAI), not necessarily a social worker – as was the case in the previous plan.
This session will include “explicit recognition of the identity rights of the applicant and their right to access their birth certificate and birth information”.
Reacting to this element of the Bill, adoption rights campaigner Claire McGettrick said it is “offensive” to adopted people, noting: “We do not need to have the concept of privacy explained to us.”
The Birth (Info & Tracing) Bill has been published: https://t.co/Umu9ns7dfJ
— Claire McGettrick (born Lorraine Hughes) (@cmcgettrick) January 12, 2022
At a quick glance:
🚨This Bill DOES NOT provide unrestricted access to birth certs/info.
🚨 This Bill is offensive to adopted people. We do not need to have the concept of privacy explained to us. 👇 pic.twitter.com/TLX5X6YrYl
Under the new law next-of-kin will be able to avail of the legislation to access information about a family member “in specific circumstances”, including children of deceased adopted people.
In another change from the previous draft of the Bill, the legislation will use the term ‘mother’ instead of ‘birth mother’ after some campaigners labelled the latter term reductive.
The definition of early life information in the Bill has been expanded to provide for the release of baptismal certificates and entries on the baptismal register.
The legislation also sets out to address issues facing people who are the subject of an illegal birth registration. It will provide a legal mechanism for “provision of an accurate birth registration to affected individuals, while remaining mindful of their current identity”.
McGettrick is also critical of the definition of incorrect birth registration information, saying it is “too narrow” and “omits other forms of illegal adoption”.
🚨🚨 This is a HUGE issue. The definitions of primary/secondary information sources are insanely narrow. Information sources must be expanded to include all individuals, agencies and institutions involved in forced family separation. pic.twitter.com/YNZP4W7ZAO
— Claire McGettrick (born Lorraine Hughes) (@cmcgettrick) January 12, 2022
Sinn Féin spokesperson on Children and Chair of Joint Oireachtas Committee for Children, Kathleen Funchion, has sharply criticised the Bill, saying it “totally at odds with the express wishes of adoptees and mothers”.
“I am particularly disappointed by the requirement for mandatory information sessions; at first glance it seems that this provision has been removed.
“But on further inspection it appears the only thing that has changed is the mechanism by which this ‘meeting’ takes place. Bearing in mind that no other Irish citizen making a similar application would be obliged to go through this process,” Funchion said in a statement.
“I am extremely concerned about red line issues for adoptees, which the Minister and government are very aware of, such as unrestricted access to birth certs and information, has not been provided for.
“I cannot comprehend how key recommendations from the Joint Oireachtas Children’s Committee Report, which I chair, have not been included at all in the redrafting of this legislation.
“The extensive work undertaken by the committee, the hours and hours of testimony from adoptees, mothers, survivors and their advocates; the significant and all-encompassing report and comprehensive consultation all appears to have been in vain. This makes a mockery of the committee and its work,” she added.
Tracing and contact
The legislation aims to establish “a comprehensive tracing service for persons who want to make contact with family or who wish to seek or share information”.
It will set up a new statutory Contact Preference Register where people can “register their preference for contact with family, as well as a mechanism to lodge communications and contemporary medical information which can be shared with family members”.
It is not entirely clear how this register will differ in practice from the existing National Adoption Contact Preference Register, which some campaigners have criticised as ineffective and not fit for purpose.
All current entries on the existing register will be transferred over to the new Contact Preference Register.
The legislation notes: “Following the transfer and after a period of six months, the National Adoption Contact Preference Register will be deleted. The Contact Preference Register will be established immediately on enactment of the legislation.
“A specific focus of the Register for the first three months of operation will be the registering of contact preferences by parents. A public awareness campaign will inform them of their rights to register a contact preference.”
If a person’s preference regarding contact has changed, they are advised to update their information and contact details.
Both Tusla, the Child and Family Agency, and AAI will hire new staff who will work in the tracing service. O’Gorman said €3 million in funding has been granted to Tusla, which will hire 30 new employees, and €1 million has been allocated to AAI.
Health records and GDPR
The Bill will also allow people to apply for their own medical information, as well as medical information relating to their parent or genetic relative when it is “relevant for the maintenance of the relevant person’s health”.
Adopted people’s own medical information will be released directly to them, but the medical information of a parent or genetic relative will only be released via a medical practitioner such as a GP.
There is an ongoing row over whether or not a GP needs to sign off on requests from survivors of mother and baby institutions who are seeking their medical records before the files are given to the person in question.
Re health records:
— Órla Ryan (@orlaryan) January 12, 2022
In the case of medical information relating directly to a person, this information will be released directly to them.
In the case of medical information of a parent or genetic relative, the information will be released via a medical practitioner. pic.twitter.com/8Fs8Pda2XI
On the issue of accessing information under the General Data Protection Regulation, the Bill states that access requests under GDPR “do not provide an effective or satisfactory legal framework for the release of identity information to adopted persons”.
Article 15 of GDPR legal framework obliges a data controller to “have regard to the rights and freedoms of others when releasing data”.
“To date, this has meant inconsistent release of information, refusal of information and redacted documents, the result of which is that people can be left with unanswered questions in relation to their identity and origins.
“This is because the GDPR does not provide the required clarity on how to deal with issues of shared personal data,” a statement from the Department notes.
It adds that the new legislation “will provide this clarity and will also ensure that there is consistency across data controllers in the release of information”.
Some legal experts have questioned this interpretation of GDPR, however, saying EU regulations supersede domestic law.
Controversial information session
Speaking today, Minister O’Gorman said: “This legislation has been an absolute priority for me. For decades in this country, adopted people have been failed in being denied clear access to their identity information.
“With this Bill, we are restoring to adopted people the information that so many of us take for granted as part of our own, personal stories. The Bill ends Ireland’s outlier status in terms of having legislation that provides access to information about one’s origins.
“Over the past year, I have spoken to hundreds of persons affected by adoption, illegal birth registration, the system of boarding out or the legacy of Mother and Baby and County Home Institutions. I know how important this legislation is to so many of them and that is why I am absolutely committed to advancing it as quickly as possible this year.
“While the legislation aims to help those with questions on their origins, it also provides important services relating to contact and sharing of information. I hope that these other services will be valuable, not only to adopted persons, but also to mothers seeking contact with, or information on, their adopted child, as well as other family members.”
O’Gorman intends to begin the second stage of this legislation in the Houses of the Oireachtas within the next two weeks.
Labour TD Ivana Bacik, a member of the Oireachtas Children’s Committee on Children, has welcomed the publication of the revised Bill but raised concerns about some aspects of it.
“The publication of this important and long-overdue legislation is welcome. Survivors of Mother and Baby and County Homes and all adopted persons have been waiting decades for recognition of the right to information on their identity. Campaigners have been crying out for legislation to provide them with access to their birth certs and information about their adoption and origins” Bacik said.
However, she expressed concern that the contentious information session was being retained albeit in a different format.
“On my first reading, however, I was concerned to see the retention of the controversial information session for those seeking information about their origins. Throughout our Committee meetings, this was raised repeatedly as a concern by privacy experts and adopted persons alike.
“Thus our Committee recommended deletion of any requirement for a meeting or information session, and it is disappointing to see that some form of information provision requirement is retained in the revised Bill.
“It is vital to listen to those who will be most directly affected by this legislation. The wishes of survivors and adopted persons must be heard. I look forward to continuing to work with campaigners, the Government and others over the coming weeks to ensure that the right of identity will be recognised at last in our laws.”
With reporting by Jane Moore
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