Attorney General's advice on access to birth details 'incorrect'

Attorney General's advice on access to birth details 'incorrect'
Children's Minister Katherine Zappone

Legal experts have said the Attorney General's advice to the Government that it is unconstitutional to give adopted people unrestricted access to their birth information is "incorrect".

Earlier this month, Katherine Zappone wrote to adoption rights stakeholders about the paused Adoption Information and Tracing Bill, advising them that it was the Attorney General's view that it is "constitutionally unacceptable to allow unrestricted access to birth information for adopted people".

However, a legal opinion signed by nine legal experts - including three specialising in Constitutional Law and the current special rapporteur on child protection Dr Conor O'Mahony - has been sent to Ms Zappone advising her that this view is "incorrect".

Under the legislation, Tusla will attempt to locate and contact both natural parents as soon as an adopted person requests access to their own early life and adoption files.

Where the natural parent does not consent to the release of the information, both parties will make their case before the Adoption Authority of Ireland.

The legislation, which has met with stiff resistance from adopted people and natural mothers, is currently paused.

Ms Zappone has proposed four options for stakeholders to consider in order to move the Bill forward.

These including inserting a presumption in favour of the release of information into the Bill.

The legal opinion sent to Ms Zappone and all members of the Oireachtas, states that the Irish Constitution and the EU GDPR allows the Oireachtas to legislate to establish a system similar to that in Northern Ireland, where "every adopted adult is entitled to their birth certificate following an information session if they were adopted prior to the introduction of the legislation".

"The Irish Constitution and the EU GDPR do not require the Oireachtas to establish a system whereby parents may object to their adult child receiving information that enables them to retrieve their publicly available birth certificate from the GRO," states the opinion.

It also states that it is "doubtful" that inserting a presumption in favour of release of information, while leaving the Bill otherwise intact, "is compatible with the provisions of the GDPR".

It points out that GDPR "is supreme overall Irish law including the Constitution".

"In our opinion, it is well within the scope of constitutionally permissible actions for the Oireachtas to establish a scheme of automatic access for all adopted people to their original identity, coupled with a fully resourced and regularly advertised voluntary National Adoption Contact Preference Register (NACPR) and voluntary tracing service," states the legal opinion.

The legal opinion states that GDPR does not prohibit the Oireachtas from legislating to give adoptees unfettered access to their birth information.

In our considered view, it is clearly permissible under the GDPR for the Oireachtas to follow the example of Northern Ireland and the other UK jurisdictions.

We know of no GDPR-based challenges to, nor suggestions that the GDPR does not allow, the established systems of automatic provision of birth certificates to adopted people in the UK and in other European jurisdictions," states the opinion.

The legal opinion is signed by Dr Conor O’Mahony (Senior Lecturer in Constitutional Law and Child Law University College Cork); Dr Fred Logue (Principal, FP Logue Solicitors); Dr Maeve O’Rourke (Lecturer in Human Rights Law Irish Centre for Human Rights, NUI Galway); Dr James Gallen (Lecturer in Law School of Law and Government, Dublin City University); Dr Eoin Daly (Lecturer in Constitutional Law School of Law, NUI Galway); Máiréad Enright (Reader in Law Birmingham Law School, University of Birmingham); Dr Sinéad Ring (Assistant Professor of Law School of Law, Maynooth University); Rossa McMahon (Solicitor, PG McMahon Solicitors) and Dr Laura Cahillane (Lecturer in Constitutional and Administrative Law University of Limerick).

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