A RIGHT TO AN IDENTITY? MOTHER AND BABY HOMES AND ACCESS TO BIRTH RECORDS

access to birth records - mother and baby homes

Is the right of access to birth records / information and a birth certificate a fundamental human right? The recent report published by the Mother and Baby Homes Commission of Investigation (“the report”) recommended that adopted people should have a right of access to their birth certificates and associated birth records / information. This right of access to birth information is currently being debated before both Dáil Éireann and the Seanad. Specifically, the Oireachtas is currently considering a total of three Bills including the Civil Registration (Right of Adoptees to Information) (Amendment) Bill 2021 which seeks to amend the Civil Registration Act 2004 to allow adopted persons over the age of 18 the right to “such information” as may be necessary to obtain a “certified copy of record of his or her birth”. While debating the Bill, the Minister for Children, Equality, Disability, Integration and Youth, Deputy Roderic O’Gorman stated that access to birth certificates for adoptees as outlined in the proposed Bill was “only part of the solution” and the Bill “will not help adoptees whose birth certificate does not record a father’s name, where that name may be on other records. It will not help those whose births were illegally registered or those who were boarded out………it will not help those who are seeking medical information about their birth families”. Deputy O’Gorman stated that it is “vital” that these groups of people are included in any such legislation.

In addition to the above, there are an additional two Bills one of which is currently before Seanad Éireann entitled the Adoption (Information and Tracing) Bill 2021 and another entitled the Adoption (Information) Bill 2021 both of which seek to amend Section 86 of the Adoption Act 2010 to allow adoptees to make an application to the tÁrd-Chláraitheoir (The General Registrar) (Register of Users) upon reaching the age of 18 years to access information held in the register of births.

Birth Registration: A Fundamental Human Right?

In the report published by the Mother and Baby Homes Commission of Investigation, it was further noted that a “persons right to his or her identity is an important human right and should only be denied in exceptional circumstances”. The right to a birth certificate has also been discussed in the course of the report published by Dr. Geoffrey Shannon in 2018 entitled “Human Rights issues at the former site of the Mother and Baby Home, Tuam” which discussed a person’s right to birth information in the context of international human rights. The report noted that the “right to birth registration is a fundamental human right” which is recognised by Article 24 of the International Covenant on Civil and Political Rights (ICCPR) and also under Article 7 of the Convention on the Rights of a Child (UNCRC). However, Dr. Shannon notes that “there does not appear to be an express right to a birth certificate under the right to birth registration” however it was suggested that a right to a birth certificate “is implicit in the right to birth registration”.

Although the right to birth registration may exist at an international level, it is important to note that both the International Covenant on Civil and Political Rights and the Convention on the Rights of a Child fall within the sphere of international law and do not form part of the domestic law in Ireland. Therefore, although the state may have obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of a Child at an international level, this does not place an obligation upon the state to answer for any breaches of international agreements before the domestic courts. Therefore, the Bills currently before Dáil Éireann and Seanad Éireann seek to introduce legislation which address a right to birth information. In this regard, the Minister for Children, Equality, Disability, Integration and Youth, Deputy Roderic O’Gorman has stated that the Government intends to introduce legislation to allow access to birth information records which is both “constitutionally and GDPR compliant”.

Should you wish to discuss any of the above matters including your rights of access to birth records / information, please get in touch by contacting us at (01) 833 8147 or alternatively you can email us at info@collierlaw.ie. Telephone, Video Call and Skype consultations are available by appointment. Anyone wishing to read the recent report published by the Mother and Baby Homes Commission of Investigation (“the report”) can do so by visiting www.gov.ie. The above referenced Bills currently before the Oireachtas can be accessed by visiting www.oireachtas.ie.