I am delighted that there is such interest in the Bill. Starting off with the constitutional right to privacy, our legal advice is that the birth mother's right to privacy stems from Article 40.3 of the Constitution, which states:
1o The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2o The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
As I said earlier, this issue posed a particular challenge for us. We sought to identify a way of reconciling an adopted person's request for information about his or her identity with the right to privacy of the birth parents. We recognise that the birth certificate is an important piece of identifying information that is shared by the adopted person and his or her birth parents. It can be distinguished from other identifying information which can be more readily characterised as belonging to one or the other.
However, for the Bill to be legally sound it must include safeguards to protect the constitutional right to privacy. We consider that the safeguards proposed in the Bill, namely, the awareness campaign, the statutory declaration, the offer of support and guidance, and the possibility of an appeal to court, provide sufficient protection of the birth parents' constitutional right to privacy, and balance the right to identity information and to ensure that the birth parent has a right to be left alone. As Senator van Turnhout mentioned, we accept that we are providing a right to information, not a right to contact. That is very clear.
It is known that, in practice, adopted people do in fact respect the birth parents' right, but for the Bill to be legally sound we need to have measures in place. We need to have important safeguards in place. It is our view that the safeguards proposed in the Bill provide sufficient protection for the birth parents' constitutional right to privacy.
The Department did consider the Senator's Bill which was of great assistance in developing proposals. Our advice is that it was not legally sound and for that reason additional measures were put in place. Certainly, however, the work that was done was very valuable to us. I think we all share the same objective in ensuring that adopted people have access to as much information as possible about their identity and to get that information in a timely fashion.
We feel that the current proposal provides a practical, workable and fair balance between the adopted person's right to information about his or her identity and the birth parents' right to be left alone and to protect their privacy.
Compelling reasons were mentioned. As members of the committee know, the Bill operates on the basis of a presumption in favour of disclosing all available information required to apply for a birth certificate to people who were adopted before the Bill was commenced. As part of the safeguards, if a birth parent provides a compelling reason not to disclose this information, Tusla's information tracing services can refuse to release it. A working definition of "compelling reason" is that such as may endanger a person's life.
The Department fully recognises that this aspect of the proposed legislation requires further consideration. I am not surprised that it has been raised at the committee today. This is an area where we feel that deliberations and the views of the joint committee during the pre-legislative scrutiny can make a valuable input. The committee's views in this regard will really be welcomed and will be given close consideration.
Some 42,000 records on adoptions are held by the Adoption Authority of Ireland. Every legal adoption has a file record in the authority. The Department of Foreign Affairs and Trade has given the US records for US adoptions to the National Archives which now holds them. Tusla has the vast majority of records which are held in its care. A small number of adoption agencies still hold records. We are working on moving all those records. While the heads of the Bill provide that the Adoption Authority of Ireland will have ultimate control for managing and safeguarding the records in the long term, it is set out step by step how it would do so, and it will be a very organised and managed process.
The Department has established a joint adoption records working group with Tusla, the Adoption Authority of Ireland and ourselves. Therefore, work is commencing to bring adoption records together and to ensure that they are secured. The Department recognises how important these records are to individuals, but also for historical purposes. They are very significant records, so that work has commenced in advance of the legislation.
The Department will continue to consider resource implications.