Banished Babies: The Secret History of Ireland's Baby Export Business (28 page)

Citing the National Archive Act as a reason for withholding information from Gene Autry – and hundreds of others who were searching at the same time – was somewhat disingenuous. If the individual adoption files had been removed from the Archive and reinstated in a government department, this restriction would have been removed overnight. And if that couldn’t be done, there was another option: the information in the personal files in the State Archives is duplicated in the files of the adoption societies who sent the children to America, and those files are not subject to the National Archive Act. The 1952 Adoption Act empowers a State agency, the Adoption Board/Authority, to enter the premises of registered adoption societies and copy their records. So, if it wished, the State could have obtained the information people were seeking unrestricted by the National Archive Act. The fact that no one was willing to take any of these options suggests that the State itself had no serious intention of finding ways to make the information available. In fact, it had another stock argument in its armoury for denying information to adopted people.

For two years after the American adoption story first broke, adopted people seeking information on their origins, or mothers on the whereabouts of their adopted children, were told that while the State really wanted to help, nothing could be done for them because the whole issue of who was entitled to know what was currently before the courts. The official position was summed up by then Junior Minister for Children, Frank Fahey, who in reply to a parliamentary question on the subject in March 1998, declared that the ‘the establishment of a comprehensive legal framework for post-adoption contact between birth mothers and adopted persons and access to birth records is a priority. However,’ he went on, ‘it would not be prudent to proceed with the necessary enabling legislation at present as there are a number of legal and constitutional issues awaiting clarification following the hearing of a Supreme Court case,’ in which judgment was still awaited.
¹⁹

The case concerned two women who had been informally adopted prior to the introduction of legal adoption. They had gone to court asking that the institution who dealt with them as babies be compelled to release the identity of their natural mothers – information the institution was refusing to hand over. The Circuit Court sent the matter to the Supreme Court for a ruling. In April 1998, the Supreme Court issued its findings.
²⁰
This was a judgment about arrangements made before the introduction of legal adoption in 1953, not about people who had actually been adopted. Legally adopted people’s circumstances might have been found to be different since they were governed by a specific piece of legislation, the Adoption Act. Nevertheless, the judgment has been held by all government agencies to be directly relevant to adopted people as well. It was a complicated ruling, and one that brought no immediate benefit to those seeking information. The court found that while every child had a constitutional right, under Article 40.3, to know their natural parents’ identity, unmarried mothers who had given their children up also had a right to privacy. It was, the ruling said, a matter of balancing these conflicting rights, something the courts would have to do in individual cases that would come before them. One Supreme Court judge, Ronan Keane, was highly critical of the Oireachtas for not clarifying these issues by way of legislation. ‘The Oireachtas,’ he wrote in a dissenting judgment, ‘have failed to avail of the many opportunities which have been presented to them of dealing with these issues. That does not, in my view, 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.’ With the Supreme Court ruling now issued, and with Justice Keane’s admonishments to spur them on, the Government might have been expected to move swiftly to do what they had long promised – legislate to provide for adoption information once the Court had its say. Instead, they did the opposite, using the judgment to argue that their hands were now tied.

Yet a huge anomaly seems to hang over the Supreme Court judgment, for while the Court upheld a
right
to privacy, the law of the land explicitly
prohibits
privacy in matters of birth. By law, every birth that occurs in Ireland must be registered in the Register of Births, Deaths and Marriages, and each entry must include the name and address of the child’s mother, whether or not her child was subsequently adopted. Any member of the public – and that includes all adopted people – may view the register on demand. And for all mothers, regardless of whether their child was adopted or not, giving false information to achieve privacy – such as a bogus name or address – is a serious criminal offence. In the matter of giving birth, the law on registering the basic facts makes no distinction between women whose children were given up for adoption and women who kept their children. They are all treated equally. It was the Supreme Court that said those who gave their children up must be treated differently by being afforded a constitutional ‘right to privacy’. But even though all birth certificates are public documents, the problem for an adopted person trying to access the public record of their own birth is that they are not permitted to know their natural mother’s name, and probably don’t even know where they themselves were born – the two key ways of accessing information in the register. This is a consequence of Ireland’s closed adoption regime. And if an adopted person asks the Adoption Board (now Authority) for a copy of their birth certificate, the Board is not legally obliged to provide it – even though it is a public record. In fact, for many years the Adoption Board simply refused all requests for birth certificates without exception, asserting that the law precluded them from doing otherwise. But the courts have held that by imposing a blanket ban on the release of birth certificates, the Board was misapplying the law, and they instructed the Board to assess each application on its merits and act in the best interests of the adopted person. As a result of this judgment, the Adoption Authority says it now issues more birth certificates to applicants than it refuses, including in cases where the natural mother has objected. Although the numbers involved are small, this seems to make nonsense of the Supreme Court ruling, and provides further proof that the whole system is in disarray. (Where a birth certificate was issued to an adopted person without the natural mother’s consent, that person was required to swear an affidavit that they would respect their natural mother’s privacy and agree not to try to contact her other than through the Board or the original adoption society.)

The 1998 judgment also sits unhappily alongside the European Convention on Human Rights as well as the UN Convention on the Rights of the Child, which the Irish State has ratified and which enshrines the right of all children to know their parents and to establish their full identity. Under the circumstances, it seems astonishing that the 1998 Supreme Court ruling has been allowed to go unchallenged by a State which purports to take its international obligations seriously.

The powers that be, of course, will point to what they regard as significant advances since the American adoption story first broke putting the whole issue of adoption information firmly on the agenda. First, there is now a National Adoption Contact Preference Register – as promised by Austin Curry in 1996. But it took
nine years
to get it up and running, and in the course of drafting enabling legislation, successive Fianna Fail governments went so far as to propose that an adopted person who tried to contact a natural parent where the parent had registered a desire not to be contacted, and likewise a parent who tried to contact reluctant children, would be liable to prosecution for harassment under the Non Fatal Offences Against the Person Act. This is a criminal offence, potentially punishable by imprisonment. This astonishing proposal was contained in legislation first submitted in 2001 by then Minister of State for Children Mary Hanafin and subsequently championed by her successor in that role, the late Brian Lenihan. The proposal was not proceeded with, largely it seems because of the storm of protest it engendered rather than because its authors realised they had made a dreadful
faux pas.

It was March 2005 before a National Adoption Contact Preference Register was launched (by Brian Lenihan) amid a fanfare of publicity. Every home in the country was sent a leaflet about the new service. Adopted people, natural parents, grandparents and siblings were all invited to register, and where there was a match, contact would be facilitated. The leaflet was to be re-circulated at regular intervals to encourage more and more people to register, but it never was. The rate of matching people who do register has been incredibly slow, and the numbers tiny. Some 50,000 people have been adopted in Ireland. Each of them had two natural parents and four grandparents and most of them probably have natural siblings. Yet, at the time of writing, only 450 matches have been achieved through the official register, involving 900 people – less than a third of 1% of the 300,0 or so people who could have joined the scheme.
²¹

The Adoption Authority maintains the Contact Register, but when it matches two people who are looking for each other – two consenting adults – it does not put them in touch directly but refers their details to the adoption agency that arranged the adoption in the first place, and there they join a queue, waiting for advice and counselling before they are put in touch with each other. For some adopted people and natural mothers, having to go back to the very organisation that separated them – perhaps in a legally and ethically questionable way – is a deeply frustrating and alienating experience. Yet the Adoption Authority seems content to leave matters as they are.

Another frequently cited reform for making good past wrongs has been the creation of nationally applicable standards in the area of information and tracing for adopted people and their natural parents. For many years past one of the most frequently heard complaints from those searching for a parent or child was that the adoption societies who were charged with helping people in this area operated widely different standards. Put bluntly, some offered a modicum of assistance while others were downright obstructive. This problem was highlighted most dramatically in 1996 in the wake of the American adoption story, when frustrated and angry adoptees and natural mothers told of how they were consistently lied to by the adoption societies – and by specific nuns running the societies. Lives already troubled were being made intolerable and urgent action was needed to bring order to the chaos. But it was to be 2007, eleven years later, before the Adoption Board, along with the adoption societies, initiated the Standardised Framework for the Provision of a National Information and Tracing Service. This framework sets national standards and provides guidance for those offering information and tracing services around the country, but at the time of writing four years later again, the Standardised Framework, which only reached the piloting stage, was again under review. What is more, it remains entirely voluntary. If its attempt to standardise procedures were to be really effective, the guidelines would have to be enshrined in legislation.

The one certain way to clean up this appalling muddle in the area of adoption rights would have been for the Oireachtas to legislate – as Justice Ronan Keane pointed out back in 1998.

In almost every western democracy but Ireland adopted people have significant rights to information on their birth records. In Scotland, all adopted people have been entitled to their original birth certificates as of right on reaching the age of 17, a right that was extended to adopted people in England and Wales by the 1976 Adoption Act. In Northern Ireland the 1987 Adoption Order extends the same rights to adult adopted people there. In Germany similar rights apply from the age of 16. Belgium and Portugal also allow access to such information as of right. Since 1956, adopted children in Holland could access their full adoption records from the age of 14. In 1979 this was lowered to 12. In Germany the age has always been 16. An adoption information commission in Canada found in 1985 that the facts surrounding an individual’s adoption belong to that person, no matter where they are stored, and also that revealing those facts had not been shown to cause harm.

In 1985 New Zealand introduced an Adult Information Act permitting adopted persons, on reaching the age of 20, to apply for information on the identity of their natural mother. Natural mothers may likewise apply for information on the adoptive identity of their 20-year-old offspring. Both sides have a right of veto, but in practice it is rarely used. In the first five years of the Act, 8,500 reunions were facilitated, and of these only six resulted in serious complaints.
²²

Ireland’s most recent legislation in this area is the 2010 Adoption Act, steered through by Fianna Fail’s Minister of State for Children, Barry Andrews. The new Act was heralded by the chairman of the Adoption Authority, Geoffrey Shannon, as a ‘world-class piece of legislation’ that would mark a ‘new era’ for Ireland. But, spectacularly, the Act failed completely to address the issue of adoption information and the right of people adopted in the past to know their origins. To the astonishment of many it also failed to legislate for open domestic adoptions in the future, although an earlier Act in 1991 allowed for openness in inter-country adoptions, thereby creating a two-tier system, with children adopted from abroad enjoying greater rights to know their origins than children adopted within Ireland. (While open domestic adoptions do now take place in Ireland, they have no legal basis and depend entirely on the goodwill of all concerned.) Commenting on the 2010 Adoption Act, the Adoption Rights Alliance remarked: ‘Barry Andrews managed to enact an Adoption Bill without including a single provision for adopted people’s rights.’ Mr Andrews countered: ‘The accusation that the Government is at pains to preserve the ethos of secrecy redolent of a darker period in Irish history is wide of the mark.’ He, too, cited the 1998 Supreme Court judgment as the critical determinant of State behaviour in this area and ended by saying: ‘it is my intention to introduce legislation that will balance in a proportionate manner the rights of all parties involved in adoption information matters – the child, the birth parents and the adopted parents.’
²³
That promise, as we have seen, has been made repeatedly without fulfillment, and Mr Andrews never got the opportunity to prove he would deliver where others had failed. His party, Fianna Fail, which had ruled without interruption since 1997, was voted out of office in the election of February 2011.