Introduction
About Aitheantas
Aitheantas – Adoptee Identity Rights is an advocacy group with an Adoptee led focus, formed in 2018 to advocate for legislative reform and equality for Irish Adoptees.
Aitheantas charts the social harm and intergenerational impacts caused by the legacy of forced and coercive adoption in Ireland. Through a restorative focus and the core policy of ‘People before Paper’, Aitheantas advocates for adoptee welfare being at the forefront of legislation and provision of supports.
Aitheantas has campaigned through supporting Council motions, the #RepealtheSeal campaign which saw unprecedented levels of public support for survivors accessing their own information, #PasstheBill supporting the passing of an amendment to the Civil Registration Bill allowing adoptees access their birth certificate, and #SupportOurSurvivors which supports a full investigation into all agencies, homes and institutions connected to historic, domestic adoption.
About Uplift
Uplift is a people-powered community of over 350,000 people in Ireland. Each day hundreds of people take small actions together for a more equal, sustainable and just Ireland.
Methodology
The Aitheantas Identity Rights for Adoptees online survey was hosted on behalf of Aitheantas by Uplift. The survey asked questions about adoptee rights and the intergenerational impact of closed adoption, interaction with the relevant agencies, societal view of adoptions, terminology as well as attitudes to legislation and memorialisation.
The design of the survey focused on areas where there were knowledge gaps as to Adoptees opinions and views on specific issues and their overall experience of the closed adoption system in the Irish context. These areas were used as a basis for some of the questions put to participants. Aitheantas worked with Uplift to ensure that the survey questions were objective.
The survey was shared with Uplift members and on the Aitheantas social media accounts. Participants were also made aware of the survey through the Aitheantas’ website, adopteerights.ie and through their emailed campaign updates/newsletter.
The survey had a total of 468 participants, most of whom were adoptees. Other participants were children or family members of adoptees. Questions put to participants can be found in Appendix A.
Background
Closed adoption in Ireland
The Adoption Act 1952 provided for formalised, legal adoption in Ireland using the ‘clean break’ or closed adoption model. This model was standard practice at the time in several countries. The closed adoption model meant that once a child was adopted they were not legally recognised as the child of their birth parents.
Views about the closed adoption approach have changed over time and adoptees’ right to their personal information has begun to be recognised. Legislation has been amended in many countries, allowing adoptees access to all or part of this information. However there has been no equivalent changes to legislation in Ireland. As a result access to birth details and other information remains extremely difficult for adoptees.
This report will examine surveys undertaken by Aitheantas, hosted by Uplift, which outline both the effects of closed adoption on the adoptee themselves, and the intergenerational impact of adoption.
The inability to access files and information has always been a significant issue for adoptees, but the surveys make clear that there is also a ripple effect, both physically and mentally, on adoptees and their families. Due to the inaction of successive governments this loss of identity is now intergenerational, affecting not just adoptees but their children and grandchildren.
Changing social attitudes
The constitutional right to identity was first recognised in Ireland in the Supreme Court decision in IOT v B.1IO’T v B [1998] 2 IR 321(SC) In this case, the Supreme Court held that the right to know the identity of one’s “natural mother” was an unenumerated personal right under Article 40.3.1 of the Constitution, following on from the natural and special relationship between the mother and the child. Hamilton CJ found that the exercise of this right to identity might conflict with the mother’s constitutional right to privacy.
Significantly, Hamilton CJ held that in such instances the mother did not have an absolute constitutional right to have her anonymity guaranteed at the time she placed her child for adoption. Accordingly, the Supreme Court held that there were two conflicting constitutional rights.
It is the role of the Oireachtas, pursuant to Article 15.2.1 of the Constitution, to legislate. Keane J, in IOT v B, stated robustly that the whole matter was one that was required to be regulated by legislation. Keane J said that the fact that the Oireachtas had failed to regulate by legislation did not “… justify the courts in undertaking such a task for which they lack, not merely the expert guidance available to the legislative arm but also and more crucially the democratic mandate.” Hamilton CJ had similar reservations on the role of the Court in this regard.
It is quite clear from the different decisions in the Supreme Court in IOT v B of the need for legislation to regulate the exercise of the unenumerated right to identity and to reconcile it with the sometimes conflicting right to privacy of the birth mother. Attempts by the Oireachtas since the IOT case in the past twenty three years, to legislate for the exercise of adoptees of their constitutional right to identity, have been seldom and unsuccessful.
In 2016, the Adoption (Information and Tracing) Bill 2016 was brought before the Oireachtas to allow adoptees to seek out personal details that were previously impossible to obtain under existing laws. The Adoption (Information and Tracing Bill) 2016 was stalled by the Attorney General on the grounds that allowing adoptees unrestricted access to their birth information was unconstitutional.2‘Adoption tracing bill shelved as unworkable’ Law Society Gazette, 12 December 2019
The government attempted to progress the other aspects of the Bill, with a number of amendments being added, until it lapsed in 2019 with the end of that last government. Many legal professionals and legal academics strongly disagreed with the Attorney General’s opinion in this matter.3O’Mahony et.al, ‘Opinion on the application of the Irish Constitution and EU General Data Protection Regulation to the Adoption (Information and Tracing) Bill 2016 and the Government’s “Options for Consideration”’, 5 November 2019
At the time of writing, the Birth Information and Tracing Bill 2021 is at the pre-legislative scrutiny stage. Yet again, the mistakes of the past are being repeated in the General Scheme of this Bill, despite the best intentions of the Minister. Attempts to allow adoptees access to information and in so doing to exercise their constitutional right to identity are qualified and limited. The constitutional right to privacy of the birth parent is prioritised over the constitutional right to identity.
This is seen in providing for circumstances in which the birth parent states preference for no contact, the adoptee must attend an information session with a social worker in order for the adoptee to be given access to their own birth certificate and/or their own birth information. There are other instances in this Bill which also limit or restrict the information available to adoptees, for example, giving discretion to the AAI in the process of releasing information or in the amount of information deemed suitable or necessary.
Both Tusla and the AAI are the assigned agencies in this Bill in the release of information pursuant to the right to identity. Adoptees’ views on the further involvement of these two agencies in the context of information and tracing are clear from the results of the Aitheantas surveys – these agencies are no longer fit for purpose. Similar views have been expressed and are published in the findings of the Commission of Inquiry into Mother and Baby Homes. It is Aitheantas strong contention, based on the shared experiences as demonstrated in the results of our surveys, that there should be a new agency.
Developments on adoptees’ right to identity have not been limited to the Irish courts. The European Court of Human Rights (ECHR) have recognised the right to identity as a fundamental right in numerous judgements.4 ‘Council of Europe: European Court of Human Rights, Guide on Article 8 of the European Convention on Human Rights – Right to respect for private and family life, 31 August 2020, available at: https://www.refworld.org/docid/5a016ebe4.html
Aitheantas have delivered briefings and made submissions to the Oireachtas on this issue, advocating for open access for adoptees to their own information and for health supports for Adoptees and their families.
The changing view as regards the ‘benefits’ of closed adoption was illustrated in May 2019 at the Department of Children, Equality, Disability, Integration and Youth Open Policy debate into the introduction of open or semi-open adoption for under 18s.5Department of Children, Equality, Disability, Integration and Youth: Open Policy Debate: The Potential Introduction of Open or Semi-Open Adoption in Ireland. 13 May 2019, report available at: https://assets.gov.ie/35523/b578c2f293c74ae49229fb569459ca2d.pdf This debate revealed how much attitudes have changed as to the previously assumed ‘benefits’ of closed adoption. Participants in the debate, including Aitheantas, struggled to identify any benefits in the closed adoption system. However, this change in attitude has not led to any legislative progress.
Access to information
Ireland is the only EU country that does not grant adoptees the right to access their adoption files, personal information, contained within them and information regarding biological family history and health history.6European Parliamentary Research Service, EPRS on Adoptee Rights (2019), available at: https://cdn.adopteevoices.ie/references/EPRS+on+Adoptee+Rights.pdf
Neither is there an automatic right for adoptees to access their own birth certificate. Participants in the surveys outlined in this report frequently talked about how much the denial of these rights affected them, as outlined in the quote below.
“Not knowing who you are, your predetermined DNA make up, personality traits, growing up in an environment where you are a square peg trying to fit into a round hole, not knowing or able to understand why you don’t fit in. This can lead to anxiety, self-doubt, low self-worth, depression, alcohol dependency etc.”
The inability to access files and information has always been a significant issue.
When it was enacted, the legislation setting up Commissions of Investigation attempted to restrict the prior Data Protection Act of 1998. The Commission of Investigation Act 2004 provides for powers relating to investigations “to investigate into and report on matters considered to be of significant public concern, to provide for the powers of such commissions and to make provision for related matters”.7Commissions of Investigations Act 2004
These powers include: the preservation of documents, the availability of records for inspection by the public under the National Archives Act 1986, and the protection of identifying information by tribunals.
As part of its powers, the 2004 Act also attempts to restrict the Data Protection Act 1988, which of course, predates the 2018 data protection legislation, the EU General Data Protection Regulation (GDPR), enacted in Ireland in May 2018. GDPR was intended to reform how organisations approach the issue of data privacy. Unfortunately, many organisations and state bodies cite GDPR as a reason for restricting access to background information of adoptees. Tusla, for example, states that because of GDPR the provision of information to adoptees would breach the biological mother’s right to privacy.8Tusla relying on “flimsy grounds” to justify redacting records and birth certs’ Irish Examiner, 7 October 2019
This interpretation ignores the fact that under GDPR, adoptees have a right to any information or records where they are the subject of said data.9EU General Data Protection Regulation (GDPR) 2018. Article 15: Right of access by the data subject
The government, Tusla and other organisations involved in the guarding of adoptees’ personal data are therefore interpreting an adoptee’s personal data as ‘third party data’ under GDPR. This has led to records released to adoptees being heavily redacted.
This misuse of GDPR follows on from the 2004 Act’s practice of controlling and restricting access to personal information in the context of commissions of investigation. This has had grave repercussions for survivors and adoptees in instances such as the Commission of Inquiry into Mother and Baby Homes, as their own personal information is not accessible to them. This further restricts and encroaches upon their constitutional rights of identity.
The surveys in this report show that this has a compound effect, both physically and mentally, on adoptees and their immediate families. Due to the inaction of successive governments this loss of identity is now intergenerational, affecting not just adoptees but their children and grandchildren.
The approach in legislation to data protection and privacy can be best described as an à la carte approach to GDPR. This approach is continuing in the present proposed legislation, the Birth Information and Tracing Bill 2021. Head 13 of the 2021 Bill, Agency and Authority may request information, is providing exemptions in the General Scheme to the operation of provisions of GDPR whilst at the same time Head 10 of the 2021 Bill, Relevant body to provide medical information, is providing restrictions in the release of information following the provisions of GDPR.
The inconsistent application of GDPR to adoptees’ request for information, pursuant to the exercise of their constitutional right to identity is of great concern. Article 49 GDPR – ‘Derogations for specific situations’ provides options for the State on the grounds of the public interest. It is our contention that with the political will, GDPR should not restrict or limit the information given to adoptees in exercising their constitutional right to identity.
Genealogy research
This report will also examine the use by adoptees of genealogy research and commercially available DNA tests, such as Ancestry DNA or 23andMe. In the absence of any contemporary legislation regarding information and tracing, these services have filled a lacuna of information and become profoundly useful to adoptees and their families, enabling some adoptees to contact biological relatives and identify birth parents. This report will make recommendations based on these findings.
Systemic failures
As illustrated in this report, the closed adoption system combined with the failure by successive governments to bring in appropriate legislation has had a negative impact on the identity formation of adoptees. This impacts on adoptees’ mental and physical health and that of their children, as these quotes from the survey reveal.
“I feel criminalised, as if I have done something wrong”
“The not knowing”
“It makes a person powerless and confused”
Aitheantas has established through the European Parliament Research Service that Ireland has the most restrictive system in the European Union when it comes to accessing information on adoptees’ personal health, history and heritage.10European Parliamentary Research Service, EPRS on Adoptee Rights (2019), available at: https://cdn.adopteevoices.ie/references/EPRS+on+Adoptee+Rights.pdf
Health information
The majority of adoptions in Ireland took place in the 1970’s. Between 1970 and 1979, 12,712 adoption orders were granted. Children adopted during this heyday for adoption in Ireland are now middle-aged and are an aging demographic, one with no access to information regarding their or their children’s risks of hereditary health issues.
Table: Number of adoption orders issued 1953 - 1995
| Year | Number of adoptions |
|---|---|
| 1953-1959 | 4,465 |
| 1960-1969 | 9,882 |
| 1970-1979 | 12,712 |
| 1980-1989 | 9,537 |
| 1990-1995 | 3,175 |
This information is vital both for adoptees’ own wellbeing but also to ensure that medical professionals can provide adequate and appropriate care and treatment. Adoptees’ frequently mentioned the issues caused by not having access to their health information, as illuminated in the quotes below.
“Every time I am asked if there is a history of [any] disease, I cannot answer”
“I had breast cancer, it would have [been] nice to know if it ran in the family.”
“I have had huge health issues and had I [sic] of been aware of hereditary ones I could have been screened and treated.”
“Each time a Dr asks me a medical history question, I have to say I don’t know, that I’m adopted, which makes me uncomfortable.”
Issues affecting adoptees in Ireland
Summary
Adoptees in Ireland who seek information on their own health, history and heritage are denied this most basic knowledge of themselves. Ireland has the most restrictive system in the European Union when it comes to adoptees accessing information. This is contrary to what is the norm in Europe and goes against what is deemed medical best practice. The lack of identity rights that adoptees have is in stark contrast to the progresses that society as a whole has made on this issue.
Adoptees have no automatic access to their own birth certificate, no automatic right to know if they have siblings or whether they have siblings who were also placed for adoption, no right to know who their biological parents are and no access to knowledge on any potential hereditary medical conditions.
Birth Certificate Access
Adoptees have a drastically different relationship to their birth certificates than non-adoptees, something which is not always fully understood by the general public. For adoptees, access to birth certificates is a nuanced and complicated issue, as illuminated by these quotes from the survey.
“Growing up without a proper birth certificate is unsettling. You constantly feel that information is being withheld and this leaves you feeling very insecure.”
“I have a lot of unanswered questions and every little bit of information is vital. It hurts me deeply that total strangers who have nothing to do with me or my mother have access to information on us which we do not.”
Table: Applications for birth certificates to the Adoption Authority of Ireland
| Year | Applications | Granted | Refused | Undetermined |
|---|---|---|---|---|
| 201611Adoption Authority of Ireland Annual Report 2016, available from: https://aai.gov.ie/images/Annual-Report-2016.pdf | 70 | 23 | 15 | 32 |
| 201712Adoption Authority of Ireland Annual Report 2017, available from: https://aai.gov.ie/images/Annual-Report-2017.pdf | 100 | 39 | 9 | 52 |
| 201813Adoption Authority of Ireland Annual Report 2018, available from: https://aai.gov.ie/images/AAI_Annual_Report_2018.pdf | 121 | 43 | 6 | 49 |
| 201914 Adoption Authority of Ireland Annual Report 2019, available from: https://aai.gov.ie/images/AAI_Annual_Report_2019_FINAL.pdf | 71 | 37 | 9 | 25 |
Adoptees’ birth certificates are one of their main links to their biological and genealogical heritage. The birth certificate provides the adoptee’s birth name, a name often given to them by their birth mother, and not generally known to adoptees prior to accessing their birth certificate. This document is an acknowledgement that the adoptee existed prior to their adoption, with a different identity, as the child of their birth parents. It has significance far beyond its written form.
“I need to know who I am, please.”
This is reflected in the findings of the Aitheantas ‘Identity Rights for Adoptees’ survey, in which 94.5% of respondents stated that they believe that adoptees have an automatic right to their birth certificate. However, under the current Irish system, this is a document that adoptees have no autonomy over.
Aitheantas believes that there needs to be full disclosure regarding this issue, as it is relevant to adoptees’ right to identity information.
Discrimination in documentation
There is distinct discrimination against adoptees, as opposed to citizens who are not adopted, by the State in its separate treatment of adoptees in accessing and processing their birth certificate. In its statement issued on the publication of the report of the Commission of Inquiry into Mother and Baby Homes in January 2021, Aitheantas calls for legislation that restoratively ratifies adoptees’ right to their own identity and provides birth certificates that are as legally, historically and genealogically correct as possible.11Statement ref Mother and Baby Homes Report and future legislation regarding Adoptee access to birth information (2021), available at: https://www.adopteerights.ie/2021/01/17/statement-ref-mother-and-baby-homes-report-and-future-legislation-regarding-adoptee-access-to-birth-information/
The incomplete nature of adoptees’ birth certificate is in direct conflict with the Status of Children Act, 1987,12Status of Children Act (1987) Section 44 as it perpetuates illegitimacy. This is contrary to the Act and also adoption legislation, which sought to legitimise adoptees. Access to an accurate birth certificate is a matter of equality for adoptees. For that reason, the father’s name – whether recorded separately on a file or established subsequently via DNA testing – must be included on adoptees ‘original’ birth certificates.
Provision must also be made in legislation for the inclusion of fathers’ names in instances where one or either birth parents have passed away. Currently, in cases where the parents were not married to each other at the time of birth, and the biological father is now deceased, the only option to re-register the birth is by obtaining a court order under Section 35 of the Status of Children Act 1987 (Declaration of Parentage). However, the legislation specifically states that this option does not apply to adoptees.
These inequalities are among the reasons that Aitheantas’ statement on the publication of the report of the Commission of Inquiry into Mother and Baby Homes and related matters emphasised the importance of legislation that restoratively ratifies adoptees’ right to their own identity, including access to accurate birth certificates.
Adoption certificates
Under the Adoption Act 1952, an adoption order (which is a High Court Order), set out the legal status of an adoptee. This document included the name of the adoptee and the names of their adoptive parents, and confirmed the adoptee as the legal child of the adoptive parents. Adoption orders have served as the unofficial birth certificate for adoptees – this is the document which adoptees receive upon request for their birth certificate. However, an adoption certificate is not a birth certificate as most people would understand it to be.
Adoptees have no autonomy over this document – as it is the subject of a court order it is deemed to be immutable and cannot be changed.13Status of Children Act (1987) Section 35
This has posed difficulties for adoptees. In cases where adoptees’ names are recorded incorrectly due to human error, the document cannot be changed. There is currently no specific process for adoptees to address this issue.
As part of a process of restorative legislation Aitheantas wants a specific, simple and private application process that allows adoptees to amend and correct their names or to include their birth names on their adoption certificates. This service should be provided at no cost to adoptees.
Tusla and the Adoption Authority of Ireland
Aitheantas notes that the report of the Commission of Inquiry into Mother and Baby Homes and Related Matters stated that former residents who came before the Commission had ‘vitriolic’ criticisms of Tusla, the Child and Family Agency.14Final Report of the Commission of Investigation into Mother and Baby Homes (2021). Recommendations: Information and tracing p.1, available from: https://www.gov.ie/pdf/?file=https://assets.gov.ie/118592/61720c04-5b16-4390-a04b-f8517f434974.pdf Tusla is one of the two agencies that currently maintain adoptees’ files that have been transferred there from several historical adoption agencies across different regions in the country.
According to Aitheantas’ Identity Rights for Adoptees survey, very few respondents to this survey have had a positive interaction with agencies.
Participants in the survey have detailed their experiences attempting to access information. The quotes below illustrate that obstruction in accessing information is not just caused by lack of legislation, but reveals an endemic attitude to secrecy within these agencies.
“Extremely painful. A social worker sitting with a file and won’t tell you anything. Months of delay, each [sic] time had to [sic] phone social worker to [sic] try get update. Dreadful process.”
“Next to impossible!!”
“Dreadful, doors constantly closed to me”
“Not a nice feeling I was told I was too emotional and to relax”
“The Social Worker had all the information in the file she dangled in front of me and then smugly closed the folder and started asking [sic] e all sorts of personal [sic] question about my marriage and job etc, to this day I still have nothing.”
“Mostly negative, lazy, unprofessional, controlling”
“An absolute nightmare… Stonewalled and lied to at every turn…”
“Excruciating, demeaning, frustrating, delayed, redacted, upsetting and discriminating. It took a year from application to meeting a social worker at AAI headquarters.”
The Commission of Investigation (Mother and Baby Homes and certain related matters) Records, and Another Matter, Act 2020, provides for the deposit with the agency (Child and Family Agency, also known as Tusla) of the database and all related records from the Commission of Inquiry into Mother and Baby Homes.
In light of existing significant, and often insurmountable, obstacles encountered by adoptees seeking access to their information from Tusla, the deposit of records from the Commission of Inquiry with Tusla is a very unwelcome development from adoptees’ perspective.
Overall, the State’s legislation continues its restrictive approach to providing adoptees and survivors with their own information (which is in the possession of the State) rather than open, or ‘clean’, access.
Aitheantas has repeatedly called for the creation of a new agency for all matters relating to historic, domestic adoption and for the removal of all files and information concerning adult adoptees from both Tusla and the Adoption Authority of Ireland.
While enacting new legislation regarding access to information is very much welcomed by Aitheantas, this cannot be carried out by the two existing agencies.
It is clear from the comments of adoptees and their families that there is an issue with these two agencies in particular which will make it difficult to engage with them again.
There is also a potential constitutional impediment in allowing the above agencies, who have previously made decisions on these cases, to make determinations again.
The constitutional principles of fair procedures, in particular the principle of ‘nemo iudex in causa sua’ (no-one is a judge in his own cause), concerns bias or the perception of bias of the decision maker.
The fact that both the AAI and Tusla have decided on the release of identity information before is prima facie evidence of bias or perceived bias and as such it is constitutionally questionable to have these agencies deliberate or involved in any way regarding access to identity information in the future. The Supreme Court has recently clarified the test for objective bias in O’Driscoll (a minor) v Hurley.15O’Driscoll (a minor) v Hurley [2016] IESC 32
Dunne J. in the Supreme Court stated that the established test16Goode Concrete v CRH plc [2015] 2 ILRM 289, O’Callaghan v Mahon [2008] 2 IR 514, Bula Ltd v Tara Mines Ltd (No. 6) [2000] 4 IR 412 for objective or perceived bias is “ … whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not invoke the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts.
Terminology
An important aspect of the Aitheantas/Uplift survey was the section asking respondents what their preferred terms are. The graph below outlines the preferred terms of the respondents to the survey who answered this question.
Legislative changes
In order to address these issues, there needs to be a holistic and comprehensive approach in regard to legislation surrounding adoptee rights and the right to background information. Adoptee and survivor voices need to be at the centre of decisions made by the Government.
Simply replicating legislation providing information access that was enacted in other countries many decades ago is not enough. Ireland has an opportunity to enact truly progressive legislation which places the needs of adoptees and survivors at its heart. It is essential that it affords adoptees the same rights as other citizens in matters of identity, health, history and heritage. To do less is to perpetuate inequality further.