THE issue of consent in the context of adoption has come under close scrutiny in recent times with many natural mothers claiming that far from adoption being a voluntary process, it was one that was evidently forced.
The fact is that unmarried mothers were not always informed about the permanent removal of their children and they were certainly not counselled as to the long-term consequences that lay ahead.
Senator Averil Power recently introduced a bill which would give all adopted people a right to their original birth certificates, a practice which has long been established in countries like Scotland, England, and Wales.
In the context of debates concerning adoption law reform, much attention has centred on natural mothers’ “constitutional right to privacy” which has been recognised by the Supreme Court.
Since the children’s rights movement in the early 1990s, increasing attention has focused on the child’s rights in this context, in particular, the right to identity.
The Supreme Court has recognised that neither the right to privacy nor the right to identity are absolute rights, each case requiring a determination of which right takes precedence.
However, in practice, a presumption has prevailed whereby it is assumed that all natural mothers were guaranteed the right to privacy.
We now know from Philomena Lee’s story and from many other women that this is not true.
The closed model of adoption enshrined in Irish law has resulted in a blanket ban on the disclosure of any meaningful information to adopted people, with the exception being, when a natural mother agrees to the release of identifying information or has herself looked for contact.
This means adopted people are advertently denied their right to identity — the right to know who they are and where they come from, as well as basic information such as medical records.
Yet, there are some natural mothers whose children were placed for adoption who would vehemently reject that they were given any promises of confidentiality.
In fact, to the contrary, they had to sign a form saying that they would not interfere in the lives of their children. At a recent conference at University College Cork, Philomena Lee showed delegates a copy of the form she signed which stated “that I further undertake never to attempt to see, interfere with, or make any claim to the said child at any time in the future”.
This then begs the question, is there evidence to support such claims of confidentiality? And if not, why not?
Surely, an adopted person’s right to identity at the very least warrants an in-depth consideration of what evidence exists concerning such guarantees of confidentiality.
It is hoped that changes to outdated adoption laws are imminent, as Labour TD Anne Ferris stated in her recent UCC address that “a lot of lives have been altered and a lot of people have been hurt by the stagnation in this area of our laws”.
For Philomena and her son, it was too late and what’s even more tragic about her story is that both their efforts to locate one another were purposely thwarted.
As Mike Milotte documented in his book Banished Babies, most adopted people believe that it has been every government’s unstated intention to purposefully delay any proper release of adoption information until most of the victims of forced adoptions have died; a policy of “deny til they die”.
With that said, it must also be acknowledged that there are some natural mothers who might never be in a position to re-establish contact with their children.
There is no doubt our adoption legislation in this area is inadequate and requires urgent radical reform.
The practices of the Adoption Authority and of social workers, which to date have been operating within a narrow interpretation of the case law, must change to reflect a changing cultural and social context in Ireland.
We are calling on the Government to take immediate action — action that is long overdue.
This should include the following:
- The upcoming Commission of Investigation into mother and baby homes, should include all institutions that interred unmarried, pregnant women and girls and their children, such as the Magdalene Laundries, county homes, infant hospitals, private nursing homes, hostels, and national maternity hospitals, so that a comprehensive investigation into all historical human rights breaches occurs;
- An express acknowledgement of the mistakes of the past and the damage that Ireland’s adoption legacy has caused for some of those directly affected by adoption;
- All adopted children and those born through assisted human reproduction should have their right to identity protected through access to identifying information. Where a natural mother does not want contact, she can indicate this at the time of the adoption order and it may be revised at any stage in the future. Any preference for no contact should not impinge upon a child’s right to identifying information;
- Enact the Open Adoption Bill ensuring children will not have to grow up without basic personal information;
- For cases of the past, where adult adopted persons are seeking information, that in balancing their right to identity, with the right to privacy of the mother, that the definition given to the word privacy in this context should only extend as far as making direct contact with the mother. Natural mothers and adopted people should both be free to express their preference with regard to having direct contact;
- The Adoption Authority of Ireland should identify and safeguard all sources of identifying information and should instigate a system to release this to adopted people over the age of 18;
- The AAI should publish its strategy for its statutory monitoring and regulation role and introduce, and ensure implementation of, minimum best international practice guidelines as a matter of urgency to ensure that all those in need of adoption services receive a quality and professional service;
- With immediate effect, an advisory group of stakeholders and independent experts should be reinstated to advise and adjudicate on the AAI’s performance on the release of information to adopted people and natural parents, seeking information on each other or seeking to re-establish contact;
- Any future changes to legislation must be accompanied by a commitment to providing a serious investment of resources into the areas of social work, counselling, support, and research.