Ireland’s Birth Information and Tracing Act: Reconciling the Right to Identity

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Introduction

On the 30th of June 2022 Ireland enacted the Birth Information and Tracing Act – legislation which for the first time in Irish history enshrines a ‘clear right to full birth, early life, care and medical information for all those with questions on their origins’. When the law comes into force on October 3rd, it will enable adopted persons to access information about the identity of their biological parents once they reach the age of 16. This post will locate the legislation within its Irish and international context (specifically the UN Convention on the Rights of the Child [CRC] and the European Convention on Human Rights [ECHR]), and assess whether it represents a permissible readjustment of the balancing of the right to birth information with other competing interests – namely the privacy rights of the biological parent.

The Irish History behind Birth Information

When first announcing the legislation, the Irish Government stated that its intent was to right the ‘historic wrongs’ that had been done to adopted people in Ireland. This was no doubt a reference to the findings of the October 2020 Mother and Baby Homes Report, the product of a government-established commission that had investigated the abuses perpetrated against women and children in institutions which were used throughout 20th century Ireland to house women who became pregnant outside of marriage. Among other concerns, infant mortality was often rampant within such institutions and ‘women felt they had no choice but to give up their children for adoption’. The Report’s recommendation that persons adopted out of such homes should have a right to their birth information was very likely a catalyst for the Birth Information and Tracing Act.

Although a right to marital privacy has been recognised in Ireland since 1973 under McGee v Attorney General, an individual right to privacy was not recognised until 1987 in Kennedy v Ireland. The first recognition of the right to identity in the adoption context arose a decade later in the 1998 case of O’T v B, which held that the right to identity was not absolute and had to be balanced against the mother’s right to privacy. The case has been repeatedly cited as ‘the reason why adoptees could not be provided with unfettered access to their birth and early life information’.

In a 2008 decision the High Court found that the disclosure of records containing an adopted person’s birth information was impermissible, as the birth mother had not been accorded an opportunity to ‘make representations in support of the rights she sought to protect’. In a similar case the following year, an elderly man attempted to obtain personal information about his mother from a hospital, but the Supreme Court held that the hospital was entitled to refuse disclosure as the information had been given in confidence by the birth mother.

As noted by Kenny, these judicial developments had stymied the granting of wide access to birth information as the Irish Government received legal counsel that legislation facilitating such access would be an unconstitutional violation of the privacy rights of birth mothers. However, Kenny also observed that when ‘two constitutional rights directly clash, and…cannot be reconciled, the courts have held that the legislature gets to decide how to resolve this clash’. Considering that the Oireachtas (Ireland’s main legislative body) had not yet attempted to resolve the clash between the right to identity and the right to privacy when the above cases were decided, there was no reason to assume that legislation granting access to birth information would be unconstitutional. This proposition has been borne out by the government’s introduction of legislation on access to birth information, rather than pursuit of a constitutional referendum.

The UN Convention on the Rights of the Child

While the CRC does not contain an explicit right to birth information, Article 8(1) provides:

‘States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference’. (Emphasis added)

However, this leaves the exact meaning of the right ambiguous. From one perspective, Article 8(1) means that ‘once an adoption or other removal from natural parents has occurred…the child may assert a right to know the facts of his true identity’. While this establishes an entitlement analogous to the right to birth information, it leaves unaddressed whether this is a qualified right and how it is to be balanced against competing concerns such as the privacy rights of the natural parents.

The text of the CRC offers no guidance in this regard, but the reports of the Committee on the Rights of the Child help to define the contours of the right. According to Lyons, the monitoring body ‘has repeatedly expressed its concern regarding national legislation which protects the anonymity of biological parents’. Her research outlines that ‘the Committee considers the practice of anonymous adoption to be contrary to the Convention’ and that State Parties must ensure that children are both informed about their adopted status and have effective access to information about their natural parents.

In 2016 the Committee expressed concern regarding Ireland’s ‘lack of a comprehensive legal framework’ for ensuring that adopted children have access to information regarding their origins. The Committee recommended the incorporation of provisions on information disclosure and family tracing into legislation – a recommendation which has seemingly been heeded by the Irish Government through its introduction of the Birth Information and Tracing Act.

The Committee’s approach prioritises the right to identity over parental privacy rights, identifying what appears to be an absolute right to birth information under the Convention. While this lack of rights balancing may be surprising, the CRC is at its core about children’s rights. Article 3(1) sets out that ‘in all actions concerning children…the best interests of the child shall be a primary consideration’. In light of this guiding principle of the Convention, it is not unexpected that little attention is given to other classes of rights holders. However, this contrasts with the approach adopted under the ECHR.

The European Convention on Human Rights

While the text of the ECHR does not contain an explicit right to identity or to birth information, the European Court of Human Rights (ECtHR) has derived a right to know one’s origins from Article 8(1), which sets out that:

‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ (Emphasis added)

This was first established in the 1989 case of Gaskin v The United Kingdom, where the ECtHR set out that the applicant had a ‘vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development’. However, the Court in Gaskin also outlined that ‘it must be borne in mind that confidentiality of public records is of importance…for the protection of third persons’. This was consistent with ECHR Article 8(2), which sets out that:

‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary…for the protection of the rights and freedoms of others’. (Emphasis added) 

However, it was only in subsequent case law that the ECtHR began to explain how to balance these competing interests.

In 2003, the ECtHR came down on the side of the privacy rights of parents in Odièvre v France. This case related to the practice of anonymous birthing, which refers to a situation in which a woman can give birth in a hospital, give up the new-born baby on the spot, and request that her identity be kept confidential. Under Article 341-1 of the French Civil Code, this request prevents the child from obtaining identifying information about their mother. France has established the National Council for Access to Information about Personal Origins as a medium for adopted persons to request information about their origins and for their mother to subsequently waive anonymity, although she is under no obligation to do so.

When the French law was challenged under the Convention, the ECtHR found it compatible with Article 8. The Court outlined that the French system attempted to protect the health of both mother and child through the avoidance of abortions (in particular illegal abortions) and the abandonment of children other than under the proper procedure, thus pursuing the right to respect for life. It also noted that the issue could not be dealt with in isolation from the protection of third parties, such as the adoptive parents and the natural father and siblings. As such, the Court held that there was sufficient evidence that the French legislation sought ‘to strike a balance and to ensure sufficient proportion between competing interests’ – a decision which ultimately favoured the privacy rights of the mother.

However, Mulligan notes that Odièvre stands out as one of the few examples in the jurisprudence of the ECtHR where the privacy rights of parents have been prioritised; subsequent case law has been weighted in favour of the right to identity. In Jäggi v Switzerland (2006), for example, the applicant sought a paternity test on the remains of a man he claimed as his father. The Court here had to balance the right to identity against ‘the inviolability of the deceased’s body, the right to respect for the dead, and the public interest in preserving legal certainty’. It decided that Article 8 had been violated and required its vindication, noting that the ‘right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life’. The weight of Jäggi might be questioned as the right to identity was balanced against the privacy rights of an individual who was deceased. However, Phinikaridou v Cyprus (2008) concerned a paternity claim where the potential parent was still alive. The Court found that the state’s time-barring of the proceedings had accorded too much weight to the alleged father’s privacy rights and constituted a violation of the applicant’s right to know her origins under Article 8.

In the more recent case of Çapın v Turkey (2019), the Court stated that although on the one hand ‘people have a right to know their identity, on the other hand, a putative father’s interest in being protected from allegations concerning circumstances that date back many years cannot be denied’. However, the Court ultimately required the vindication of the right to identity, holding that ‘in proceedings for establishment of paternity, where a careful balancing exercise is required, the best interest of the child should be given priority’. This outcome seems to suggest convergence between the requirements of the ECHR and the CRC, even if the ECtHR has not expressly adopted an absolutist approach to birth information rights.

While the above case-law shows that the Court has tended to prioritise the right to identity over the privacy rights of parents, Odièvre demonstrates that exceptions can be made where the state has sought to strike a balance between such competing interests. This reflects the margin of appreciation which the ECtHR grants to domestic courts, although it is unclear how far this flexibility extends.

The Birth Information and Tracing Act

The Birth Information and Tracing Act represents a clear prioritisation of the right to identity, as it grants adopted persons an absolute right to birth information regardless of the expressed preferences of their biological parents. In light of the foregoing analysis, it appears that such an approach is permissible under the Irish Constitution and is consistent with – if not mandated by – the CRC. However, the compatibility of the legislation with Ireland’s ECHR obligations is less clear. ECtHR support for the right to identity has been clearest in the context of paternity claims, as in Jäggi, Phinikaridou and Çapın. By contrast the Odièvre case and the Birth Information and Tracing Act both largely relate to questions of maternal identity, and correspondingly the capacity of the right to privacy to protect the autonomy of mothers. Given the prioritisation of the right to identity in the Act, it is unclear whether the rights balancing envisioned by the Court in Odièvre is met under Irish law.

There is, however, one feature of the Irish legislation which attempts to reconcile these competing interests. Section 17 of the Act sets out that if a birth parent expresses a no-contact preference, the individual requesting birth information is required to attend an ‘information session’ (either in person or via phone/video call) where they are informed that the preference of their parent not to be contacted constitutes an exercise of the parent’s right to privacy.

During the Act’s passage through the Oireachtas, concerns were raised that the content of the information session had the potential to be problematic and deter adopted persons from obtaining their birth information and that this could be avoided by replacing the meeting with a letter. The session has been further criticised as paternalistic and ‘based on the premise that adopted persons must be educated about the need to respect privacy rights’. Conversely, the Irish Government has maintained that the information session is a ‘necessary and minimal mechanism to protect the EU and constitutional rights of parents’ and that without it the legislation would fail to seek a balance between the competing interests. This brings a new perspective to the long struggle between identity rights and privacy, as the information session seems to carve out space for a potential balancing of rights where such an endeavour had seemed inevitably polarised.

However, this arguably overstates the merits of the information session. On one hand, it does not alter the fact that adopted people still effectively have full right of access to birth information. The requirement of an information session will likely be of little consolation to a biological parent that prefers anonymity. On the other hand, it is dubious whether the information session represents a justifiable procedural obstacle in the path of adopted persons looking to better understand their past. Although the Act stipulates that the session must also include explicit recognition of the applicant’s entitlement to obtain their birth information, the procedure may still represent a deterrent to many adopted people both by the attachment of a condition to obtaining such information and through the content of the session itself. 

While France and Ireland have chosen to prioritise different classes of rights (privacy rights under the practice of anonymous birthing and identity rights under the Birth Information and Tracing Act) both approaches have created opportunities for rights-holders to exercise discretion in a deliberative fashion. Mothers can choose to waive their anonymity under the French system, while adopted persons can choose not to exercise their entitlement to birth information under the Irish system. The competing right is given consideration, even if it is not necessarily realised. This similarity suggests that the Irish legislation may in fact satisfy the balancing of rights required by the ECtHR.

The information session will no doubt require further examination once information and tracing services under the Act open on October 3rd, alongside other contested facets of the Act such as its restriction to persons over the age of 16 and its exclusion of children conceived through the use of anonymous donors in cases of artificial insemination. It seems likely that the clash between the right to identity and the right to privacy will remain in the hands of the courts in Ireland and Strasbourg to resolve.

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