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Student ID Number: 20402014

The Birth Information and Tracing Act 2022 was recently introduced in Ireland, with the aim
of providing new facilities such as full disclosure of identifying information to all relevant
individuals who are 16 years of age or older, a new tracing service, contact preference
register, safeguarding relevant records, all in order to ensure that the right to identity is
protected in the state. In order to successfully evaluate this new legislation, the circumstances
and reasoning behind the act will be highlighted, followed by existing case law which is
relevant to the right of the child to know their identity. Subsequently, the main Act provisions
will be analysed, accompanied by the overall effects of the Act, whether positive or negative,
while simultaneously offering a few reform suggestions.

Older Position/Reason for Change:

The position which Ireland took when it came to the release of information to individuals,
when it came to adoption was made clear with the aid of many judgements which arose over
the years. IO’T v B [1998] is one case which manages to depict perfectly Ireland’s prior
position. In this case, Hamilton CJ made it clear that the right an individual has to know their
natural mother is a basic right however, this right is definitely not absolute, as its practice
may be limited by the constitutional rights of others and also by the need for the common
good.1Prior to the adoption of the Birth Information and Tracing Act 2022, existing law
placed restrictions on who could access personal information held in documents held by the
State, institutions of religion, and adoption agencies. Under that legislative framework,
previous administrations and State entities battled to achieve a balance between constitutional
and convention rights, paying particular attention to the right to privacy granted by article
40.3 of the Constitution,2 and other areas, such as Article 17 of the International Covenant on

1
IO’T v B [1998] 2 IR 321.
2
Law Society of Ireland, ‘Who Do You Think You Are? New Birth Information Act in Force’’ (2022) 116 Law
Society of Ireland Gazette 30 <https://www.lawsociety.ie/globalassets/documents/gazette/gazette-pdfs/gazette-
2022/november-2022-gazette.pdf#page=31> accessed 22 February 2023.
Civil and Political Rights.3 This right was given due weight due to the fact that it is
fundamental to the defence of human dignity and serves as the backbone of any democracy.4

However, due to the fact that this right to privacy was so heavily emphasised, the right to
identity, which is enshrined in Article 8 of the Convention on the Rights of the Child, and
also Article 8 of the ECHR, was not sufficiently considered. As stated in Article 8 of the
UNCRC, States Parties, which includes Ireland, must undertake to respect the right of the
child to preserve his or her identity, including nationality, name and family relations as
recognized by law without unlawful interference, while also taking into consideration where
a child is illegally deprived of some or all of the elements of his or her identity, they shall be
provided appropriate assistance and protection, with a view to re-establishing speedily his or
her identity.5 In Article 8 of the ECHR, the right one has to discover their origins is imbedded
in the provision which states that “everyone has the right to respect for his private and family
life, his home, and his correspondence.” This right of identity is considered to be very
important, as seen in cases heard in the ECtHR. One such case is Jaggi v Switzerland (2006),6
in which applicant's inability to acquire a DNA examination on the mortal remains of his
presumed biological father, it was declared that there had been a violation of Article 8 of the
European Convention on Human Rights. The lack of importance which both of these
provisions in the Conventions were given in Ireland when it came to the right a person had to
know their origins sparked serious concerns about Ireland's fulfilment of its international
human rights commitments.7Even a position paper released in 2007 by the Children’s Rights
Alliance in relation to the proposed referendum to amend the Constitution to enhance
children’s rights, made the recommendation that insofar as is reasonably possible, the
amendment should guarantee every child's right to have their identity protected and to know
their parents.8 Therefore, the Birth Information and Tracing Act was established to secure

3
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 17.
4
Privacy International and Digital Rights Ireland, ‘The Right to Privacy in Ireland’ (Privacy International 2015)
2 <https://privacyinternational.org/sites/default/files/2017-12/upr_ireland.pdf> accessed 25 February 2023.
5
Convention on the Rights of the Child (November 1989, entered into force September 1990) 1577 UNTS 3
(UNCRC) art 8.
6
Jaggi v Switzerland (2006), no. 58757/00, ECHR 2006.
7
Ombudsman for Children's Office, ‘Op-Ed Identity Rights for Children’ (Ombudsman for Children’s
Office2013) <https://www.oco.ie/app/uploads/2017/11/oped-identity-rights-IT.pdf> accessed 25 February 2023.

8
Children’s Rights Alliance, ‘The Constitution and Children’ (January 2007)
<https://www.childrensrights.ie/sites/default/files/submissions_reports/files/CRAConstitution_0.pdf> accessed
26 February 2023.
both the right to privacy and the right to one's identify in a way which they would be
appropriately balanced, unlike the past.

Provisions in Act:

The importance of knowing one's roots is codified in the Birth Information and Tracing Act
2022. It provides the subsequent four services in compliance with this essential goal: an
information service, a tracing service, a contact preference register and lastly, the
safeguarding of records.9 The law stipulates that in certain situations, next of kin and children
of relevant persons, who must be 16 years old or older, may also receive full access to
identifying information, therefore, the information service, found in sections 2 to 4 of the act,
provides the people who qualify with identity information. Identity information consists of:
birth certificate, birth information, early life information, care information, medical
information, medical information relating to a genetic relative , provided items and finally,
incorrect birth register information.10

Part 5 of the Act relates to the tracing service. The purpose of the tracing service is to assist
those who want to get in touch or exchange information with a certain person. The Child and
Family Agency, Tusla, and the Irish Adoption Authority all deliver the service. In the tracing
procedure, the Agency or the Authority locates a specific individual at the request of an
applicant with the goal of facilitating mutual contact or information sharing. The program can
be a valuable tool for people to learn more about their ancestry in addition to assisting those
who would wish to get in touch with a relative, especially considering the typically vague
details found in historical data.11

Contact preference register can be found in part 6 of the act. The Contact Preference
Register's major objective is to give people the opportunity to express their preferences for
family contact, as well as to provide contact details, information, and items to share with
designated family members. The Register is a mechanism for people to communicate their
contact preferences, such as a request for privacy, in contrast to the tracing service, which

9
2022 (Birth Information and Tracing Act 2022 - Policy Guidelines) p3.

10
Ibid 8.
11
ibid 29.
assists persons who are actively seeking contact. Additionally, it offers a way to store data
that will only be shared if the intended receiver choose to do so.12

Safeguarding relevant records, located in part 7 of the act, has the main goal of guaranteeing
the preservation of crucial historical and pertinent documents pertaining to adoption,
boarded-out or nursed-out arrangements, unauthorized birth registrations, and Mother and
Baby and County Home Institutions. This provision stipulates immediate protection upon
initiation and permits the submission of records to the Adoption Authority of Ireland in
accordance with a directive from the Authority. The Act establishes the idea of an
information source in order to achieve record preservation. A person, group, or organization
that is tasked with maintaining the confidentiality of sensitive records is considered an
information source. In the Act, information sources are enumerated and further defined as
primary in Section 44, and secondary sources of information in section 45, respectively. In
cases where the Minister has a good faith belief that someone is in possession of a significant
record, the law also permits the Minister to specify a secondary information source.13

It is also depicted in part 10, section 70 of the act that the Minister must start a review of how
this Act is being implemented no later than two years after it goes into effect, and that the
Minister must confer with those whom they deem necessary, including those who are
relevant, when conducting a review. This will aid significantly with correcting any issues
which are presented in the act.

Impact of the Act/ Recommendations for Reform:

Seeing as the act is a fairly new one, which has not been around for enough time to allow for
the evaluation of whether it has had a positive or negative impact overall, the effects on
people of the lack of such act can be analysed, in order to get a better idea on whether it is
beneficial or not. As the Minister for Children, Roderic O’Gorman previously stated, there
has been an overall negative impact on individuals due to the lack of access to fundamental
information previously, relating to their identity. Therefore, the Birth Information and
Tracing Act is many steps forward, towards ensuring that the people affected have their right
to identity protected, unlike it was done in the past. However, a downside to this act is, as
Roderic O’Gorman pointed out, that although people who are eligible will receive personal

12
ibid 38.
13
ibid 43.
information but the information that is in existence relating to them might be incorrect,
limited or also insufficient,14meaning that some people will not receive some of the
information that they would be expecting to receive following the enactment of this act.

A recommendation which could be given, to aid with the effectiveness of this act is in
relation to part 10, section 70 of the act, stating that the Minister must conduct a review.
Although this will have overall positive results, this review alone would not be enough to
catch peoples’ concerns relating to the Act, or any provisions which would need to be
improved. Therefore, another layer of review should be added in order to ensure full
usefulness overall.

With all of this in mind, it can be said with great confidence that The Birth Information and
Tracing Act 2022 is effective in its attempt to balance both the right to privacy and the right
to identity in Ireland, meaning that Ireland is finally fulfilling of its international human
rights commitments. Furthermore, the act introduced four different beneficial services, all
which work together simultaneously, emphasising the importance of individuals knowing
their origins. Finally, the act has undeniably made a genuine attempt at reducing the negative
impact on individuals before the act was enacted however, the personal information available
to the people eligible might be either be untrue, constrained, or inadequate.

Bibliography:
Case Law:
 Jaggi v Switzerland (2006), no. 58757/00, ECHR 2006.
 IO’T v B [1998] 2 IR 321.

14
Department of Children, Equality, Disability, Integration and Youth, ‘“Historic” Birth Information and
Tracing Act 2022 Signed into Law and First Steps towards Information and Tracing Services Commenced’
(www.gov.ie1 July 2022) <https://www.gov.ie/en/press-release/e2de8-historic-birth-information-and-tracing-
act-2022-signed-into-law-and-first-steps-towards-information-and-tracing-services-commenced/> accessed 25
February 2023.
International Conventions:
 Convention on the Rights of the Child (November 1989, entered into force September
1990) 1577 UNTS 3 (UNCRC) art 8.
 International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 17.

Secondary Sources:
 Children’s Rights Alliance, ‘The Constitution and Children’ (January 2007)
<https://www.childrensrights.ie/sites/default/files/submissions_reports/files/
CRAConstitution_0.pdf> accessed 26 February 2023.
 Department of Children, Equality, Disability, Integration and Youth, ‘“Historic” Birth
Information and Tracing Act 2022 Signed into Law and First Steps towards
Information and Tracing Services Commenced’ (www.gov.ie1 July 2022)
<https://www.gov.ie/en/press-release/e2de8-historic-birth-information-and-tracing-
act-2022-signed-into-law-and-first-steps-towards-information-and-tracing-services-
commenced/> accessed 25 February 2023.
 Law Society of Ireland, ‘Who Do You Think You Are? New Birth Information Act in
Force’’ (2022) 116 Law Society of Ireland Gazette 30
<https://www.lawsociety.ie/globalassets/documents/gazette/gazette-pdfs/gazette-
2022/november-2022-gazette.pdf#page=31> accessed 22 February 2023.
 Ombudsman for Children's Office, ‘Op-Ed Identity Rights for Children’ (Ombudsman
for Children’s Office2013) <https://www.oco.ie/app/uploads/2017/11/oped-identity-
rights-IT.pdf> accessed 25 February 2023.
 Privacy International and Digital Rights Ireland, ‘The Right to Privacy in Ireland’
(Privacy International 2015) 2
<https://privacyinternational.org/sites/default/files/2017-12/upr_ireland.pdf> accessed
25 February 2023.
 2022 (Birth Information and Tracing Act 2022 - Policy Guidelines).