Dr David Kenny: Time to admit the government’s legal advice on adoption is wrong
Dr David Kenny, assistant professor of law at Trinity College Dublin, argues the government’s legal advice on the rights of adopted children is flawed and a referendum on the matter is not needed.
As the country comes to grips with the report of the Mother and Baby Homes Commission and reckons yet again with Ireland’s dark institutional past, one issue that must be urgently addressed is access to adoption records.
However, there is a risk that, rather than swift legislative reform to enable adopted people to access their records, we will begin a lengthy process of holding an unnecessary constitutional referendum.
Irish adoption law
The law on adoption information and tracing—allowing adopted people access to their records—has long been criticised.
Under the law, as it stands, adopted people are not entitled to their birth certificate, or to information about their families of origin.
Adopted people and their advocates argue—fairly in my view—that this is fundamentally unfair, and a violation of their basic rights.
In the term of the last government, Minister for Children Katherine Zappone attempted 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, thinking this essential to vindicating their rights.
She was stopped from pursuing this course by the former Attorney General, who apparently said that allowing such broad access would be unconstitutional as a violation of the privacy rights of the birth mothers of such people. He insisted on a narrow, case-by-case right of access.
The Constitutional question
The current government has committed to revisiting the issue, but the constitutional objection has resurfaced again in the Commission report.
The Commission stated that, in its view, an unqualified right of access to information for adopted people should be recognised.
However, citing the advice of the Attorney General that “it was constitutionally unacceptable to allow unrestricted access”, the Commission said that it seems likely that a referendum will be needed to change the Constitution in order to allow this.
I—along with many other constitutional lawyers who have considered this question in detail—believe that this is incorrect: no referendum is needed, and the Oireachtas can legislate for an unqualified right of access to records.
The Attorney General’s concern is based on a valid and important consideration: the privacy rights of birth mothers, some of whom do not wish to have their identities revealed, and may have expected that this would never happen.
But the rights of adopted people to know their identity are similarly important, and this is a situation where rights clash: we cannot defend both at the same time.
AG argument flawed
The Attorney General’s view that adopted people cannot be granted unfettered rights to information is based on a Supreme Court judgment delivered in the late 1990s.
In this case, known as IO’T v B, the plaintiffs tried to get records from the Rotunda Girls Aid Society, which had arranged their adoptions, that would identify their birth mothers. The Society refused.
The Supreme Court said that both people involved in the adoption of this sort had constitutional rights at stake: the right of the adopted person to know the identity of their birth parent, and the right of the birth mother to privacy.
However, this right to privacy was not absolute, and if the Circuit Court—which was hearing the case—felt that the rights of the adopted people were stronger, the information could be disclosed. The Court sent the case back to the lower court to consider this question.
It appears that the former Attorney General advised that this case means the Oireachtas cannot legislate to allow unrestricted access to birth records in all cases, as this would not pay sufficient regard to the privacy rights identified by the Supreme Court. If this is correct, the Constitution would have to be amended to allow such access.
But the IO’T case does not say this. The case dealt with balancing these two sets of rights in a particular case where no legislation had been passed to resolve this clash of rights. The Court did not comment on what could be done in such legislation. The Court, indeed, stressed that the privacy rights of birth mothers could not be absolute.
Political, not legal
The courts have stressed repeatedly, in many different cases, that it is for the Oireachtas, not the judiciary, to make complex policy choices and balance competing rights with the common good.
The Oireachtas, being elected by and accountable to the people, has better insight into 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 clash, and—as in the adoption information context— cannot be reconciled, the courts have held that the legislature gets to decide how to resolve this clash, which right to favour.
Only if the solution the Oireachtas chooses is irrational or profoundly unfair will the courts intervene and say the law is unconstitutional.
All of this means that the Oireachtas could decide that the rights of adopted people need to be favoured and their information needs to be accessible. This would not disregard the rights of birth mothers, but to say that, important as their privacy rights are, the rights of adopted people in this context have to take priority.
This is the approach that Minister Zappone thought was the best one, after extensive consultation with all interested parties. This approach is favoured by the Commission as well. If the Oireachtas also agrees with these determinations, there is nothing to suggest that the Constitution prohibits it from legislating to make it so.
We do not need a lengthy referendum process to enact an unnecessary change to the Constitution to achieve a fair outcome for adopted people; we can simply pass a law. These measures have been campaigned for and debated for years, and we should not delay them further.
If there are any constitutional doubts about such legislation, the President could refer it the Supreme Court to determine the matter once and for all.
Unless and until the courts say that such a measure is not allowed, the opinion of the Attorney General should not be allowed to stop these adopted people getting the information they desire 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.