The Government does not intend to hold a constitutional referendum to provide survivors of mother and baby homes with a right of access to their birth certificates as suggested by the Commission of Investigation’s report, but will instead prepare legislation based on European data privacy laws to achieve the same goal.
However, Ministers and the Taoiseach have shied away from promising access through new legislation as they are not yet certain that it is legally possible.
Instead, they say this is the Government’s intention “if possible”.
Work is ongoing with senior officials and the Attorney General to devise new legislation which can respect existing constitutional rights to privacy while providing access to birth certificates and adoption papers by relying on the GDPR, the Europe-wide data and privacy law. But it is understood that Ministers have been told that officials “cannot say with certainty” if this will be possible.
Previous attempts to provide access to records for survivors, including legislation proposed by former minister for children Katherine Zappone, faltered. Survivors of institutions and adopted people have been seeking the right to their birth certificates and documentation for many years.
‘Rebuild trust’
In a statement to The Irish Times, Minister for Children Roderic O’Gorman said that he was “deeply aware of the importance of birth certificates and early life information for adoptees. Providing such information is a key part of the Government’s efforts to rebuild trust with adoptees.
“We’re engaging with the Attorney General regarding how an approach based on the GDPR can achieve the goal of providing access to birth certificates and early life information,” he said.
But senior Government sources say they cannot yet be sure that such an approach will bear fruit.
Previous legal decisions have required a balance of the rights of access and privacy, though sources are optimistic that an approach based on the rights of people to their own data, enshrined in European law – which supersedes Irish law in cases of conflict – in the GDPR can unlock access to documentation for survivors and adoptees.
Sources say that if the GDPR approach does not prove fruitful, a constitutional referendum may be sought. However, this would put off establishing a right to access to the documents for some years. Even if the legislative route is successful, it will be well into next year before new law would come into force.
