DENYING ADOPTED PEOPLE and survivors of Mother and Baby Homes, particularly older survivors, access to their birth certificates and other personal information could re-traumatise them, the Oireachtas Children’s Committee has heard.
Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission (IHREC), today told the committee that survivors have told her “the right to truth is key”.
“Free and unfettered access to their own personal information and records is essential for survivors. To deny this could initself be re-traumatising, particularly for older survivors, and so the burden on you as legislators to shape this pivotal law effectively is a heavy one,” Gibney said.
The Joint Committee on Children, Disability, Equality, Integration and Youth is today continuing its pre-legislative scrutiny of the General Scheme of the Birth Information and Tracing Bill 2021.
Children’s Minister Roderic O’Gorman has described the legislation as “groundbreaking”.
The purpose of the Bill is to enshrine into law a right to access birth certificates, birth and early life information for people who have questions in relation to their origins, and also all people who were adopted, boarded out, the subject of an illegal birth and others with questions in relation to their identity.
The legislation also proposes the establishment of a comprehensive Tracing Service and a statutory Contact Preference Register to support people wishing to make contact or share information.
The Bill will undergo pre-legislative scrutiny in the coming months before an Oireachtas vote.
Speaking to TDs and senators today, Gibney said the State’s approach should “recognise that while this legislation must vindicate rights to truth denied to so many for so long, there is a corollary that there are birth mothers who have been living under a cloud, as inquiries, debates and now legislation happens, fearful that undisclosed information would be revealed”.
She added: “So it is important to be mindful of all.”
Gibney stated that the provision of birth certs or early life information “is by definition the vindication of the right to identity, personality and the right to private and family life for adopted people”.
“People seeking access to the records at the centre of this bill have already suffered delays, often of many years, and so this legislation should mark a sea-change in approach.”
She said the IHREC recommends that statutory timeframes for compliance with information requests should be set out.
Gibney said the proposed requirement for an information session with the person seeking information where there is a no-contact preference from the parent “appears to cater to the privacy rights of natural parents”.
“However, it’s questionable the extent to which this requirement achieves this aim, as the information will ultimately be provided and the theoretical contact will be possible once the information session is held.
“We believe that this requirement would present a further obstacle to affected persons in accessing long-sought information, and where the relevant person does not want to undergo an information session it represents a complete barrier.”
The IHREC is recommending that this requirement be removed from the legislation. Or if retained, it should be “transformed into no-obligation counselling, support and information services, tailored to the needs and wishes of the individual”.
GDPR
Speaking earlier today, Dale Sunderland, Deputy Commissioner at the Data Protection Commission (DPC), noted that “the broad intention” of the draft legislation is to provide so-called “relevant persons” aged 16 or over with access to a range of records and information including their birth certificate, early life information, care information, and medical information.
Sunderland noted that in 1998 the Irish Supreme Court ruled that neither a person’s right to know about your origins or a person’s right to privacy, both constitutional rights, were absolute and that “each might be constrained by the weight of the other, as well as the weight of the common good”.
“This has resulted in a position where agencies in Ireland tasked with providing access to birth and early life information of adopted persons have had to do their best case-by-case to balance the competing rights in the cases on-hand,” Sunderland said.
He said the DPC wants the Oireachtas to clearly articulate that the proposed policy position to be adopted in favour of providing birth certificates to relevant people over 16 “without any process allowing for objection – for example, on grounds that it would seriously harm them – by a birth parent”.
“Given that the previous iteration of this Bill outlined such a process, it is important that there is clarity around the policy change and why the balancing of rights in these sensitive situations is now deemed to have changed in favour of an absolute right to identity data.
“To be clear, the DPC does not advocate for either position – rather we simply point out that data protection and privacy issues arise and the State must be able to articulate how it has come to the policy position and what considerations underpin the balancing of rights presented in the Bill.”
In terms of balancing rights, Sunderland noted that Article 15 of the General Data Protection Regulation (GDPR) – the right of access to personal data – is “not absolute”.
“Article 15.4 states that the right to obtain a copy of personal data shall not adversely affect the rights and freedoms of others. This underlines the need for the Oireachtas to be clear in the context of the Bill as to how the rights and freedoms of the birth mother are not adversely affected to the extent they would restrict the right of access.”
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