Birth Information and Tracing Bill 2022: An Analysis

  • Recommendation 8: to include ‘the full list of known institutions, agencies and individuals that were involved with forced family separation in Ireland, without limiting the bill solely to those bodies
  • Recommendations 9 and 12: to expand the definition of ‘care information’ to which a person will be entitled and in particular to include ‘care provided by a birth parent or guardian of the child, a relative of the child…or a person who is, or becomes, the adoptive parent of the child’ (on the basis that this is personal data)
  • Recommendation 10: to amend the term ‘incorrect birth registration’ in the Bill ‘to say “falsely or incorrectly recorded
  • Recommendation 13: to ensure that ‘existing misinterpretation of mixed data’ is rectified ‘in line with existing GDPR rights
  • Recommendation 14: to include in the records to which every person is entitled ‘information relevant to all treatment, including medical records and possible abuse; administrative files; the widest interpretation of Early Life Information; rights of access to “birth relative information” to “care information” and “early life information” and “medical information” under GDPR’
  • Recommendations 16 and 41: that ‘the mandatory information session should be removed from the legislation’ in order to ‘ensure an effective right of access to GDPR rights
  • Recommendation 26: that ‘the Bill should be amended to provide for a reciprocal right for mothers to receive their full records, including information about their child and to have input into them in the form of an appended statement or similar
  • Recommendation 27: that ‘the Bill should be amended to provide statutory right of access to the administrative records, wherever they are held, of all adoption agencies, institutions, State bodies and others involved with forced family separation for natural/birth mothers, survivors, adopted people and others placed in “care”
  • Recommendation 29: that ‘Religious organisations involved must provide relevant files as a matter of urgency’
  • Recommendation 31: that ‘the Bill must provide all affected people, including siblings and relatives of the deceased, with access to the processes set out in the Bill’s provisions
  • Recommendation 40: that ‘the provisions of the Bill must be proofed to ensure that adopted persons are provided with a clear means of accessing their rights to information in compliance with GDPR requirements
  • Recommendation 55: that ‘Statutory timeframes for compliance with information requests should be set out
  • Recommendations 57 and 73: that ‘The Minister should establish a new agency to carry out the functions assigned under the Bill to Tusla and the AAI. This new agency should be established as soon as possible and no later than two years from the coming into effect of the Act…In the interim, while the statutory functions remain with Tusla and the AAI, an independent oversight mechanism such as an Ombudsperson process, should be put in place to ensure additional support and reassurance for adopted persons and others accessing services
  • Recommendation 66: that medical information relating to a person ‘should only be provided to the applicant’s medical practitioner with their consent as well as being provided directly to the applicant
  • Recommendation 70: that ‘In every case where an individual was involved in a vaccine trial they should receive that information. This should be made clear in the Bill’; and
  • Recommendation 79: That ‘counselling and other similar supports should be extended to all affected parties, regardless of contact preferences, including all birth parents, adopted people, and the children of those affected’.
  • The GRO or TUSLA will alert the AAI that the person has requested their information. (Without consenting to this procedure a person will not be entitled to retrieve their birth certificate or birth information.)
  • Then, the AAI will undertake a process of ascertaining whether both of the person’s parents are deceased or, if still alive, whether either parent has registered a preference not to receive contact from their adult child on the Contact Preference Register.
  • The AAI will subsequently inform the GRO or TUSLA of its findings. If a parent has registered a preference for no contact, the GRO or TUSLA will transfer the requesting person’s contact details to the AAI whereupon the AAI will arrange for the person to undergo an ‘information session’ for the purpose of informing them of their entitlement to their information, of their parent’s preference regarding contact, and of ‘the importance of the relevant person respecting the privacy rights of the parent and the preference of the parent’.
  • The AAI will then tell the GRO or TUSLA that the information session has taken place.
  • The GRO or TUSLA will subsequently arrange to send the person their birth certificate or birth information.
  • an ‘adopted person’ (they must have been adopted under an adoption order or placed for adoption outside the State by An Bord Uchtála, a registered adoption society, the AAI or TUSLA, or otherwise adopted in accordance with the law);
  • a person who experienced or has reasonable grounds for suspecting that they experienced a ‘boarded out arrangement’ (this must have been a legal arrangement authorised by a local authority or health board);
  • a person who experienced or has reasonable grounds for suspecting that they experienced a ‘nursed out arrangement’ (which must have been legal, with notice given to a local authority);
  • a person who has been, or has reasonable grounds for suspecting that they have been, the subject of an ‘incorrect birth registration’; or
  • a person who was, or has reasonable grounds for suspecting that they were, as a child ‘in an institution specified in the Schedule’ (the Schedule lists only 14 Mother and Baby institutions and 30 County Home institutions).
  • Sections 44 and 45 require all ‘primary information sources’ and ‘secondary information sources’ to retain and maintain all ‘relevant records’. (‘Relevant records’ are defined in section 2 as records relating to adopted people and to those boarded out, nursed out, subjected to illegal birth registration — termed ‘incorrect birth registration’ in the Bill — or institutionalised as a child in a Mother and Baby or County Home institution).
  • According to section 2, the ‘primary information sources’ under the Bill are TUSLA and the AAI.
  • Section 2 states that the ‘secondary information sources’ are four Government Ministers (Children, Education, Foreign Affairs and Health), the data controller of the AIRR archive, the Health Service Executive, a registered adoption society, an accredited body under the Adoption Societies Register or its successor register, and any future source designated by Ministerial regulation.
  • Sections 46 and 48 create the potential for future powers to be exercised over ‘other’ persons who hold ‘relevant records’. However, these powers are not immediately present in the Bill.
  • The Bill creates rights to request information only from the General Register Office, TUSLA and the AAI.
  • Further ‘relevant bodies’ who must respond to information access requests may be designated in the future by Ministerial regulation (sections 2 and 55).
  • While failing to provide access rights for people affected, section 34 of the Bill gives TUSLA and the AAI the authority to demand information from a diocese or parish of the Roman Catholic Church or Church of Ireland (but not from a religious order) for tracing purposes.
  • The Bill allows the parents of a child who died in a Mother and Baby or County Home institution to request information; however, other ‘next of kin’ may not apply until it has been ascertained that those higher in the Bill’s order of immediate relatives are deceased (i.e. a brother or sister may only apply if the deceased’s parents are no longer alive) (sections 26 to 30).
  • The Bill does not provide access to information about those who died in institutions other than the 14 Mother and Baby and 30 County Home institutions listed in the Schedule (sections 26 to 30).
  • The Bill allows the adult child of a deceased adopted person or person illegally registered at birth, lawfully boarded/nursed out or institutionalised in a Mother and Baby or County Home institution to apply to TUSLA or the AAI for their parent’s information — but only if their grandparents (i.e. the parents of their deceased parent) are also deceased (sections 21 to 24).
  • Section 63 makes the availability of counselling support mandatory for parents who express a preference for no contact with their adult child.
  • On the other hand, section 63 simply allows TUSLA to arrange counselling support for other affected people if TUSLA so wishes.

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Lecturer in Human Rights, Irish Centre for Human Rights, National University of Ireland Galway

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Maeve O'Rourke

Maeve O'Rourke

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Lecturer in Human Rights, Irish Centre for Human Rights, National University of Ireland Galway