A law to facilitate the tracing of relatives for those affected by adoption must take account of the "strong constitutional" right to privacy of the birth mother, Minister for Children Frances Fitzgerald has told the Dáil.

She said the initial outline or heads of the legislation, the Adoption (Information and Tracing) Bill, “are close to completion” and would be dealt with by the Oireachtas health and children committee. The starting point of the Bill “has been to provide as much information as possible”, the Minister said.

But Ms Fitzgerald stressed: "I will be bound and am bound . . . to provide for a balancing between the strong constitutional provision relating to privacy and the right to identity." The Minister was responding during Dáil question time to Independent TD Clare Daly, who said the Minister appeared to be adamant that the right to privacy has priority "way above the rights of children to their identity".

Legal advice
Ms Daly challenged a Supreme Court judgment that was considered in legal advice for the forthcoming Bill. The IO'T vs B case concerned a fostering arrangement where an adoption order was not made. The majority of the court held that a natural child had an implied constitutional right to know the identity of his or her mother but this had to be balanced against the right of the natural mother to privacy.

The Dublin North TD said the judgment in that case “made the assumption that a natural parent would not want to be contacted. That does not have any basis in reality however because most adoptions were forced adoptions. Some of those from the past were not proper adoptions at all.”

She suggested the advice of Minister for Justice Alan Shatter should be sought on the issue. Ms Daly said that 11 years after the IO'T vs B judgment, Mr Shatter said, when in opposition, that the issue was "not rocket science". "He said it had been addressed in neighbouring jurisdictions and that someone who was adopted across the Border in Northern Ireland had substantially greater rights than someone had in this State and that it could be addressed here."

Scenario
Ms Fitzgerald said a certain amount of the scenario Ms Daly had painted could be dealt with in the legislation, including where a birth mother had no objection to being contacted or where a birth mother was deceased or where the mother could not be traced but it was reasonable to assume she was deceased.

But she pointed out that the right to privacy had been firmly established as a constitutional right through a number of cases starting with the 1974 judgment on marital privacy in Magee vs the Attorney General .

Ms Fitzgerald stressed that in Ireland “we are in a different position to other countries that do not have a constitution”. She said the judgment Ms Daly referred to did not involve an adoption order but where one was made it severed parental rights and duties, and “a birth mother’s right to privacy may have more force”.