Irish Centre for Human Rights Blog

Anna Godau (magistra iuris, Heinrich-Heine-University of Düsseldorf, Germany) is an International Human Rights LL.M. candidate at the Irish Centre for Human Rights at the University of Galway, a research intern at Global Legal Action Network (GLAN) and a member of the production team of the Human Rights Podcast of the Irish Centre for Human Rights.

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The Birth Information and Tracing Act 2022 firmly and finally substantiates the right to one’s identity, specifically the right to access information about one’s identity, in the Republic of Ireland. In what follows, I will examine the right to one’s identity and demonstrate the human dignity component of this right in the historical context of the institutionalisation of citizens, specifically mothers and babies and its consequences in the present.

The right to one’s identity as a human right

The right to one’s identity derives from the respect for family and private life, which was first determined in Art. 12 of the Universal Declaration of Human Rights (UDHR) and was subsequently established in Art. 8 of the European Convention on Human Rights (ECHR).

Art. 8(1) ECHR states that ‘everyone has the right to respect for his private and family life, his home and his correspondence’. The right to one’s identity or the right to access related information are not expressly stated in the ECHR. The European Court of Human Rights (ECtHR) contributes to the understanding of the scope and nature of Convention rights in their rulings. The Court has final jurisdiction over ‘all matters concerning the interpretation and application of the Convention’ as per Art. 32(1) and thus can clarify the scope of Convention rights. The ECtHR has developed the right to respect for private life as per Art. 8(1) to encompass inter alia aspects of one’s physical and social identity as well as the right to establish relationships with other human beings, i.e., the right to one’s identity (e.g., Mikulic v. Croatia, para 53, 54). This includes the right to one’s biological truth, the right to know one’s parentage as well as the right to gain access to information relating to one’s origins and related identifying data, such as birth information (e.g., Odièvre v France, para. 29; Jäggi v Switzerland, para 38)

The right to one’s identity in Ireland

Ireland has been bound by the ECHR since acceding in 1953 and is therefore required to ‘secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the ECHR]’ (see Art. 1 ECHR). As stated above this includes the right to one’s identity. However, before the Birth Information and Tracing Act 2022 was adopted relevant persons as per Part 1 section 2 para. 1 of the Act had no statutory right to their birth certificates, nor to early life or medical information, among other things, in prima facie breach of Art. 8(1) ECHR. Relevant person as per the Act means ‘a person who is one or more than one of the following: (a) an adopted person, (b) a person who is, or who has reasonable grounds for suspecting that he or she is, the subject of an incorrect birth registration, or (c) a person who has been, or who has reasonable grounds for suspecting that he or she has been, at any time in the period following his or her birth and ending on the date on which he or she attained the age of 18 years (i) resident in an institution specified in the Schedule, or (ii) the subject of a nursed out arrangement or a boarded out arrangement’.

The rule of law is a ‘fundamental principle in a democratic society’; its significance is emphasised when looking at the grave human rights violations that occurred in the Republic of Ireland in the 20^th century. Up until 1998, Ireland institutionalised countless unmarried pregnant women and subsequently their children in so-called “Mother and Baby Homes” and similar institutions. In these Institutions many children were born and raised without proper documentation. There was a systematic problem of illegal and deliberately falsified birth and adoption registration documents. This is particularly problematic because most institutionalised children were adopted, some used for vaccine trials and all of them suffered generally from the conditions in these institutions, characterised by abuse, physical and psychological. All of the aforementioned is relevant information in regard to the right to one’s identity, which affected persons had no access to until this year, even though the ECtHR has specifically pointed out that ‘an individual’s interest in discovering his or her parentage does not disappear with age, quite the reverse’ (Godelli v Italy, para 56). This gross failure of the Irish government to comply with established jurisprudence of the ECtHR in regard to the right to gain access to information relating to one’s origins and related identifying data is a fundamental breach of the rights of the Irish citizens that were affected by this system of institutionalisation.

The right to one’s identity as a part of human dignity

Drawing a legal comparison to Germany shows how the right to one’s identity is inherently linked with human dignity. The German Constitutional Court has established in its permanent jurisprudence that the right to one’s identity is inherent to human dignity (see for example BVerfG, Ruling from 31.01.1989 – 1 BvL 17/87  Guiding Principle 1, para 68). Considering the principle of the rule of law and the fact that over 100,000 people were held in these institutions, it is rather shocking to learn that it has taken until now to secure the right to access early life information in Ireland. However, it is a step in the direction of ensuring human rights and especially human dignity, which ought to be acknowledged. Considering further the obligation of a state to promptly investigate past human rights violations, it must also be acknowledged that historical and legal reappraisal of these institutions must not end here. Former sites are still housing unmarked children’s burial grounds, which have not been investigated yet; just in Bessborough the majority of all 923 children’s remains are still missing. Other institutions, such as county homes, which were a type of “foster care”, have not all been investigated. These examples make it clear that more work needs to be done.

I want to end with an appeal to the Irish Government to not to let the adoption of the Birth Information and Tracing Act 2022 be the only step in the direction of remembrance and ensuring human dignity of the former inmates of these institutions. Society should make its dark history part of their heritage by honouring the ones that suffered so that their memory may lead our lives going forward. The commitment to truth and justice must go further than a call for closure, for ‘those who do not remember the past are condemned to repeat it.’