The Minister for Children is proposing the biggest shake-up of adoption law in half a century, writes Carol Coulter.
There was no law on adoption in Ireland prior to the enactment of the 1952 Adoption Act. While adoptions did sometimes take place, they were based on ad-hoc arrangements and were not subject to any legal oversight.
The majority of children born outside marriage were not adopted, but sent to residential institutions run by religious orders and organisations. The promotion of adoption was a social policy initiated in 1952 and pursued with great vigour for the next three decades, reaching its zenith in the 1960s. According to the Minister for Children, Mr Brian Lenihan, more than 95 per cent of the children born outside marriage in the 1960s were adopted.
An Adoption Board was set up, initially under the Department of Justice and later under the Department of Health. However, this essentially had a registration role, and the actual adoption process was handled by 20 independent agencies, all but one of them Catholic. Religious apartheid was rigidly upheld, with a prohibition on the adoption of Catholic children by non-Catholic parents.
Although many aspects of this policy have been criticised, and the quality of the consent to adoption given by some natural mothers was questionable, to say the least, there is little doubt that for most adopted children the experience of adoption was far better than the realistic alternative of the time - institutional care.
However, the introduction of the Unmarried Mother's Allowance in 1972, and the change in social attitudes towards single parenthood over the next decade, saw a dramatic fall in the number of adoptions. This was followed by a rise in the number of women seeking to trace their children, and of adopted people seeking information about their origins.
The fall in the number of Irish children available for adoption gave rise to an increasing number of inter-country adoptions, part of a world-wide phenomenon. This has given rise to the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption, which Ireland has signed, but not yet ratified.
In 2003 Mr Lenihan initiated a consultation process on the overhaul of adoption law, in the light of changed economic and social circumstances. The new legislation that has emerged from the consultation process will also allow Ireland ratify the Hague Convention.
The consultation process drew together people from different sides of the adoption debate - natural parents, adopted people, adopting parents and the agencies involved in the adoption process.
The most contentious issue was that of contact and information between adopted children and their natural parents. Those representing adopted people are strongly of the view that they have the right to information about their origins, and to contact, if possible, with their natural parents. At least some natural parents, overwhelmingly mothers, consented to adoption at the time on the basis of total confidentiality, and may not have revealed the existence of the child to anyone since.
Some of the agencies involved are also less than enthusiastic about unrestricted rights to information. They would have operated on the basis of the desirability of secrecy. Records may not exist, or may not have been properly kept. The issue of the mother's consent may be problematic.
Both Irish and international law have recognised the complexities involved in this area. The Irish Supreme Court has held that the mother's right to privacy must be balanced against the individual's right to knowledge about his or her origins. The European Court of Human Rights last year upheld the legality of the practice allowed in France and certain other European countries, where babies can be surrendered anonymously in hospitals.
The proposed legislation will deal with this fraught area by establishing a voluntary Contact Preference Register. This will allow both adopted people and their natural relatives to register their preferences with regard to contact, include a preference not to be contacted at the present time, and to specify the forms of contact preferred. Details of this will be published later in the year, following an information campaign. The new legislation will also provide for information rights in future adoptions.
What is likely to have the most far-reaching effect on children in need of homes, however, is the new provisions on guardianship, fostering and adult adoption.
"It's crazy that wealthy people here are going off to Thailand or Russia to adopt children while children here are looking for stable homes," Mr Lenihan told The Irish Times.
What emerged in discussions with those who adopted abroad, and who were asked why they did not foster a child, he said, was the lack of legal certainty in fostering arrangements.
This can produce difficult practical problems - a foster parent cannot sign for a passport, or consent for medical treatment, or even sign a range of consent notes routinely required by schools. The child of married parents cannot be adopted in Ireland, except through a lengthy and expensive legal process proving that the parents have reneged on their parental responsibilities.
Mr Lenihan is proposing a two-pronged solution. On the one hand foster parents will be able, after a period of time, to apply to become guardians of the child they have fostered, thereby giving them legal rights. Then the foster child will be able, at the age of 18 and with the agreement of the family, to apply to be adopted by that family, thereby becoming legally fully part of it, with all that this implies for inheritance and other rights.
Under the proposed legislation the wider use of guardianship will also be allowed in a number of other situations, particularly where a child is being raised in a family with one natural parent and his or her spouse.
This would be an alternative to the present situation where a mother who marries someone not the father of her child must, along with the husband, adopt her own child. This will help allow natural fathers retain their links with their children living in such circumstances.