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Dáil Éireann debate -
Tuesday, 25 Jun 1974

Vol. 273 No. 11

Adoption Bill, 1974 : Report Stage.

I wonder is it necessary to recommit the section in respect of amendment No. 1? I gave notice the last day that I would put it down, to enable a full discussion on it because the Chair might consider it was necessary. On the other hand, if the Chair does not, I have no objection to it.

It is not a matter for the Chair; it is for the House to decide.

If the Deputy feels that the discussion demands recommittal I will not raise any objection although we debated it well the last day and points of view are pretty well struck at this stage.

I am sorry to hear that; I am wasting my time so.

Does the Deputy wish it to be recommitted?

I do, if the Minister agrees.

Bill recommitted in respect of amendment No. 1.

I move amendment No. 1.

In page 2, line 25, after "consent" to insert the following:

", provided always that notwithstanding such knowledge or consent an adoption order shall not be made unless the religion of the child is the same as the religion of the applicant or of one of the applicants."

The effect of this amendment would be to add to section 3, the section now dealing with religion and which was amended the last day in this Bill, the proviso that, notwithstanding the fact that the natural mother is aware of the religion or religions of the prospective adoptive parents in the case where both of their religions are not the same as that of the child, the board should not make an order unless the child's religion is the same as that of one or other, or both, of the prospective adopters. I refer in the amendment to "the religion of the applicant or one of the applicants" because it is possible for one person to adopt a child. It is not very usual but it does happen every year, usually the person concerned is a widow. The widow who applies is not infrequently granted adoption orders but the most common case is that of a married couple. The particular problem that this section 3, by repealing the two sections in the 1952 and 1964 Acts that dealt with religion, seeks to meet is the question of adoption by a couple who are in what is described as a mixed marriage.

In November, 1972, I announced in the Seanad, and I quoted from the speech the last day and gave the reference, that I proposed to make an amendment to the adoption code in which in effect adoption by a couple in a mixed marriage would be allowed with the proviso that the religion of the child would have to be the same as the religion of one of the parties to that marriage who were proposing to adopt that child. There was no objection whatever taken by anybody to that proposal which I think was a reasonable and fair one. I think that as well as being reasonable and fair it is also necessary because we can have a situation where we are dealing with an unmarried mother who is just about to or has given birth to a child and is in a position of great emotional upset. There is no question but that her judgment can frequently in those circumstances be impaired.

Childbirth is a pretty traumatic experience for most women, even women who are perfectly happily and legally married. The fact that it can be traumatic, even for married women, and can cause an impairment of their judgment has been recognised in our law as far back as 100 years. It was recognised in the 1870s that a mother who kills her own child within 12 months of giving birth to that child shall not be guilty of murder, no matter what the circumstances, nor guilty of manslaughter but shall be guilty of a comparatively minor statutory crime known as infanticide for which the maximum penalty is very small by comparison with the potential penalties for manslaughter and for murder.

Medical and psychiatric science were not very advanced in the 1870s. There is no question but that it is only in the last ten or 20 years that major advances came about in those particular fields but notwithstanding the comparative lack of knowledge 100 years ago about these matters the Legislature of the day saw fit to create this special comparatively minor statutory crime because it recognised that women were mentally disturbed and their judgment became unbalanced as a result of childbirth. If that recognition is there in respect of even married women for as long as 12 months after the birth of a child, then surely we in the 1970s should recognise the possibility that in the case of an unmarried mother either shortly before or after the birth of her child there is a definite danger of impairment of her judgment. The trauma and the medical effects, the physical and psychological effects of the birth of a child to an unmarried mother, particularly if she is very young as most of these girls unfortunately are, often as young as 16 years, can be very great, much greater than the trauma or psychological effects which might lead a married woman to kill her own child within 12 months of the birth of that child.

It is wrong that we should give the opportunity to a very young girl who may be only 15 or 16 years of age the opportunity to consent to her child being adopted by people who are not of her or her child's religion and to consent, therefore, to her child being brought up in another religion. Even though she is aware of this fact I do not think she should be given that opportunity at that particular time and in the particular circumstances in which she finds herself. We are being quite illogical in trying to give a frightened little girl of 15 or 16 the right to make this major decision a few days before or after the birth of her child and at the same time we will not as a Legislature give a mature man or woman of 20 years and ten months of age the right even to make the simplest contract in this country. There are people with university degrees and a high degree of personal and psychological maturity just under 21 years of age who cannot make a simple contract to buy unless it is for necessaries.

Which covers a lot.

It can normally be argued that to buy shares or to buy property of any kind is not a necessary as long as the person has somewhere to live. A man or a woman coming towards the end of their 21st year could be well off, very well educated, a university graduate and be mature, emotionally and psychologically, but we as a Legislature do not recognise their right to make a contract unless it is for necessaries. At the same time we are allowing a frightened little girl of 15 or 16 years of age who may be in some home far from her own people, possibly without even the knowledge of her own family that she has had a child, to make a decision when clearly she is not in a position to do so. She should not be put in the position of being able to agree to her child's religion being changed, a decision which, frequently, is made a day or two before or after the birth of the child.

The Minister has said that in practice this problem will arise only rarely because a high proportion of the placements made are arranged by adoption societies and that most, if not all, of the adoption societies have a particular religious link. There is one Protestant adoption society and there are about 20 which have links of one kind or another with the Roman Catholic Church. However, we, as a Legislature should not allow this problem to arise. We are under this obligation now particularly because in this Bill we are proposing to repeal section 12 of the 1952 Act and that section of the 1954 Act which deals with the question of religion; we are repealing the provision whereby a change of religion on the part of a mother would not be recognised for 12 months after that change had been made. That provision was advisedly put into the 1952 Act. It was put into the Act for a very good reason.

What was the reason?

It was for the purpose of preventing or stopping proselytising. When I made the first rough draft of what is now this Bill, I recall having discussions with various people whose knowledge of adoption, from a practical point of view, was considered to be greater than mine and most of these people told me that they could see no objection to the repeal of the legislation I am talking of— this question of a bar on the recognition of a change of religion by a mother for 12 months after the change had been made. This was, they said, because proselytising no longer existed to any significant extent. Apparently it did exist up to and shortly after the war and was an issue of some kind, at least, in 1952 when the first of these Bills was debated here.

While a number of people agreed in 1972 and 1973 that proselytising no longer existed they told me they were conscious of the fact that if the provision against it in the 1952 Act were repealed there was at least a danger that it might reappear in one form or another. On balance it is right to repeal those particular provisions but it is not right that, having repealed them, we would allow a wide open situation in which that sort of thing could occur here again and that is what is liable to occur because it is out of these kinds of situations that arose practices which were known in this country up to 20 years or so ago. It is out of these kinds of situations that such things could arise again in the future and I want to avoid that by legislation against it here. It can be a simple matter to prevent it happening but there is a particular duty on us, when we are proposing in this Bill to repeal the anti-proselytising provision of the 1952 Act, to ensure that we do not make it easy for people who might so wish to go back to that field of activity.

All I am asking is that this section be enacted on the lines I discussed in the Seanad in November, 1972, and which won general acceptance at that time from all those who were concerned with adoption and particularly those groups who were pressing for a change in the legislation which would allow couples of mixed marriages to adopt children. I do not think any couple in a mixed marriage would disagree with a requirement that the child should be of the same religion as one or other of them. Probably most couples would not wish to adopt a child that was not of the same religion as either of the parties in a marriage. It is often said that mixed marriages, particularly in the context of children, can give rise to strains and tensions which might not exist in a marriage where both parties were of the same religion but there would be very strange strains and tensions if, in a mixed marriage, a child was of a religion other than that of either of the parties. What I am proposing would not act unfairly against any child. Neither would it act unfairly against any natural mother and, assuredly, it would not act unfairly against any prospective adoptive parents. In particular, it would not interfere with the right of the natural mother to place her child where she wills. I do not know whether, at the moment, she has the right to place her child where she wills. She has a right to have her child adopted but she is not told by whom it is adopted. Neither will she have that information so far as this section is concerned but she is being given the opportunity to consent to her child being adopted by a couple neither of whom is of the same religion as the child.

In many cases, the mother, if she acts normally and rationally, will say that she will not agree to her child being placed with a particular couple because of this factor but I have described—I think not inaccurately—the situation that faces many of these very young mothers at the time of the birth and the psychological effect that the birth or the imminence of the birth has on them and the fact that, unquestionably, their judgement must be impaired. If, 100 years ago, Parliament could recognise that even a married woman can have her judgment impaired by childbirth for as long as 12 months after the birth, surely we here in 1974 should be able to recognise that an unmarried mother, perhaps of a very young age and in unfamiliar surroundings, is liable to have her judgment impaired. Therefore, we should not give her the opportunity, which is what we are doing in this Bill as it stands, of doing something which on rational and calm reflection, she almost certainly would not have wished to do. It would not be the position of a natural mother in this country regardless of what might be her religion to agree readily to her child being adopted into or brought up in another religion.

It is being unnecessarily liberal to seek to give a mother that opportunity now. She does not need it. It is not a question that she is not going to be able to get her child adopted if she does not give it to a particular couple of a particular religion. There is an enormous waiting list of prospective adoptors of all religions in this country. The shortage is of suitable children for adoption. There would be no question, particularly as she will not know who the prospective adoptors are, of the mother feeling that if she did not let the child go to that particular couple, it would not get adopted at all.

I am sure every mother is told by the authorities who consult with her about it that there is no difficulty whatever in having a child adopted. The problem is the opposite. The various societies are inundated with applications from people who wish to adopt. They far exceed the number of children likely to become available for adoption in any one year.

I would urge on the House and on the Minister to accept this amendment which seeks to do one thing only, namely, to protect the right of the child to be brought up in the religion in which it was born, and which seeks not to give the opportunity to perhaps a very young and frightened girl to agree to her child being brought up in some other religion. I cannot see that there is any onus on anybody in asking that the House would accept that very reasonable proposal which I feel sure would meet with the agreement of anybody who examines the position anyway objectively.

To consider the Deputy's amendment it is necessary to recall what the present position is in the adoption code with regard to religion. Prior to the recent High Court decision the adoption code provided that all the parties to the adoption had to be of the same religion —the adoptive parents, the natural mother and her child. They all had to be of the same religion or in the case of orphans the child had to be a child of parents of the same religion.

This meant that persons of mixed marriages — we all know what that term means — were precluded from adopting. That was one provision. The other decision was that adverted to by the Deputy. If the mother changed her religion 12 months before or after the birth the adoption could not take place for a further 12 months from the date of birth or the date of the change, as the case may be. As the Deputy says, this was introduced in 1952 as an anti-proselytising measure. It is my opinion that an Act of Parliament is not the vehicle to provide for such measures. It seems to me that to endeavour to introduce the subject of proselytism in an Act of Parliament is inconsistent with the move towards ecumenism which is gaining pace all the time. It is a subject which I am anxious to avoid. It is not a matter for a statute. A statute should not be a vehicle for taking into account the question of proselytism which in this country has tended to go in one direction.

That was the position until the recent High Court decision which found that the provision of the 1952 Adoption Act which provided that applicants should be of the same religion as the child and its parents, or the child and its mother if the child was illegitimate, was unconstitutional. As a result of that finding and the Government's acceptance of it, we are now seeking to repeal it. It was our opinion that section 12 (2) of the 1952 Act should be changed.

The Deputy opposite agreed with that opinion because he indicated when he was Minister that he would change it. The Government accepted the High Court decision. As a consequence of that acceptance they felt that the religious provisions in the adoption code would have to fall. None of them is being repeated in this Bill; they are being repealed. The so-called anti-proselytism measure also falls. What Deputy O'Malley is now urging on us in this amendment is to re-enact something which I think should not be in a statute and which has been frowned upon by the courts.

It was felt that in the amending legislation now before the House where the adopting parties differ in religion, or where one of them differs in religion from the mother or her child, this fact should be brought to the attention of the mother. It was with some hesitation that I decided to insert that provision in the Bill. I did so feeling that this was a fact of such importance that it should be brought to the attention of the natural mother. She should be told that the couple with whom her child was being placed were of different religions to that of the child and herself. I felt it should be introduced into this Bill for the reason that if it was not there and the change in the law consequent on the High Court decision took place a mother would no longer have the assurance that the child was being placed with a couple of the same religion as herself and her child. This might inhibit placements or in cases where placements took place it might lead subsequently to scruples as to whether the mother was right in placing her child for adoption without any knowledge of the religious beliefs of the adoptive parents. It was for these practical reasons I decided to introduce the provision that where the religion was not the same as that of the mother she should be informed of this fact.

Deputy O'Malley wants to go further and extend that provision by stating as he sets out in his amendment that notwithstanding the fact that the mother knows of the different religions the order should not be made unless the religion of the child is the same as the religion of at least one of the applicants. I am not disposed to accept that amendment for the reasons which I gave the last day and which I have considered since then. I think they are good and valid reasons. All that the Legislature can do in a statute like this is to attempt to draw the attention of the natural mother to the fact that the adoptive parents are not both of the same religion. It is then a matter of free choice of the mother whether she gives her consent to place the child with those parents or not. Deputy O'Malley makes the point that in many cases because of the trauma of birth and possibly the young age of the mother in question it is unreal to talk of her free choice. She might be constrained to make a decision that would be unwise and one which she would subsequently regret. This is speculation. I do not think we can legislate on that basis. Furthermore, although the consent given by the mother at that stage, is the final consent, there is still a six-month interval during which she can withdraw it.

Again if the situation were as described by the Deputy, the six-month interval can be extended by the Adoption Board. There is the subsequent waiting period of at least six months in which she can reconsider her decision and withdraw her consent. As the Deputy and the House are aware, consent to adoption can be withdrawn at any time before the adoption order is made. We have provided in the Bill for the case of the procrastinating mother who withdraws her consent or will not make up her mind.

The Deputy's amendment could have a very serious practical difficulty. He wants to ensure that at least one of the adopting parents is the same religion as the baby. I could envisage a situation where a young girl emigrates and embraces a religion not the religion of her birth — she might even embrace one of those oriental religions which are becoming more and more popular. Perhaps she becomes pregnant and returns here to have her baby. Her baby will have her religion. She might want her parents who might be members of a church in this country to adopt her child. If I were to accept this amendment this would not be permissible because the baby's religion would be that of the mother's changed religion which she adopted when she went abroad whereas her parents would have the religion of the family. If this amendment were accepted grandparents would be prevented from adopting their grandchild. That type of adoption is quite frequent here. I have known of several cases. These adoptions have been very happy solutions to difficult domestic situations. I am sure the Deputy does not intend that but it is a consequence which would follow from this amendment and is a very serious argument against its acceptance.

Again, having drawn the mother's attention to the fact that there is a difference of religion between her and the adopting parents, I am advised that for the State to go further and say that she shall not place her child with particular adopting parents because they are not the same religion, could be held to be an interference with the natural rights of the mother and could be unconstitutional. If we were to interfere with the type of adoption I have exemplified, it would be clearly an inhuman provision, apart from its unconstitutionality.

The fact that it could prevent grandparents from adopting their illegitimate grandchild and could constitute an interference with the natural rights of the mother, are two strong reasons why the provisions in the Bill should not go as far as Deputy O'Malley wants. We have discharged our obligations to the natural mothers by making provision that they be informed when the religions are not the same. To go further and say that they can only place the child if one of the parties is of the same religion as the mother is to go too far and is exceeding our obligations and our duties.

As I indicated earlier, I do not think that an Act of Parliament is a suitable vehicle for dealing with proselytisation. This is not a matter for the Legislature. Even if it were, it would be incompatible with ecumenism which I think should be the predominant feature on the religious horizon rather than raising the old sores which proselytism brings with it. For these reasons I am not prepared to accept the amendment.

I am sorry to hear the Minister say that, because I strongly and genuinely believe this amendment is necessary. The Minister's example of a difficulty which it could create, while theoretically right, is so unusual and unlikely to happen that the damage which would be done by accepting the amendment would be about one-thousandth of the damage which would be done by not accepting it. He speaks of young unmarried girls going abroad and adopting oriental religions.

Or other religions.

Yes, or other religions. It is not unknown for a number of them to adopt exotic religions without going abroad. I do not know if the Bahai is an oriental religion, but it is not uncommon. But when it comes to the crunch most of them regard being Bahai or whatever religion the Maharajah of somewhere follows, as being a practice. I know of at least one marriage in Limerick between two followers of an exotic religion which took place in the Catholic church, the Bahai, or whatever religion it was, not having a provision for the carrying out of the various religious ceremonies.

Therefore, I do not consider that the alleged problem referred to by the Minister is real. The number of young girls who, either abroad or at home, adopt an exotic religion is very small. If the number who adopt these religions is very small, the proportion who become pregnant outside marriage is also very small. We are now trying to make law in order to justify a one-in-a-million situation. One should not try to justify making the law, as the Minister wants, simply on the grounds that perhaps one person in a million will be in a very unusual situation.

It is very hard to believe that a young girl who has adopted an exotic religion and is delivered of an illegitimate child would stick so tenaciously to an oriental or other religion which she recently acquired because it happened to be fashionable with the particular group in which she moved. Normally such a girl would be willing to allow her parents to adopt the child. It is very hard to see her sticking so tenaciously to it that she would insist her child be described as of some strange Indian religion and in that way deprive her parents of the opportunity, for her child's benefit and for hers, of adopting it. Such an extreme example on the part of the Minister shows that there could not be much genuine objection to what I am asking.

He failed altogether in his reply to deal with the question of the effect of childbirth, even within marriage, on women. He failed to advert to the fact that the Legislature recognised approximately 100 years ago that it had a severe psychological effect even on those who were married, yet here we are coming along 100 years later saying that we do not recognise that the birth of an illigitimate child to a very young girl — a lot of those girls are around 15 or 16 years — would have any psychological effect. Of course it would. There is no question but that it would have a much more severe effect than any of us here would realise or could dream of. It can be totally shattering for her, particularly because of her very limited horizon.

It seems strange that we should make no recognition of that fact, that we should allow her to do something which under the section we almost assuredly would not wish. If she is uncaring of religion herself and does not want her child to have any religion, then she is perfectly free beforehand to declare that she is of no religion, and then neither I nor anyone else can quibble with the way in which that child is brought up. But if she declares her religion is X religion, then she must surely not be allowed or encouraged, as could well be the effect of this section unamended, to allow her child to be adopted by people neither of whom is of that religion.

Up to very recently in this country and elsewhere there was a strong feeling that it was putting a child's future happiness in jeopardy to allow it to be adopted by a couple where both of the parties were not of the same religion as the child. That opinion was very strongly held in this country up to quite recently, and now we have suddenly come to the situation that we are interfering with the rights of the mother and everyone else if we pay any regard to the religion in which the child apparently will be brought up.

I am all for liberalising things up to a point, but there is a point and I am afraid this is the point, and it is no use talking of ecumenism and things of that nature. They are not relevant. The Minister tried to imply perhaps inadvertently, that children of one particular religion would end up in another religion or in another group of religions. It could apply equally the other way around. He said that proselytism, as it is known in this country, envisaged movement from one religion to another. I am not sure that is universally true in relation to what happened in the past and I am equally not certain that it would be universally true of any proselytism that might take place in the future. It might well be in the reverse direction to what the Minister tried to imply.

However, it is wrong that the inability of a very young and frightened girl to make a clear and rational judgment at an early age in a very traumatic experience should cause her child to be brought up in a religion other than her own. If we still cling to the fiction that somebody approaching the end of his or her 21st year is not a fit man or woman to make a contract for anything, we are being simply hypocritical when at the same time we expect a young frightened girl of 15 or 16 years to make rational and unimpaired judgment in very traumatic circumstances about something that is considerably more important than making a contract to buy a motor car or some other such article.

I trust the Minister will not seek to take the view that I am being too concerned with religion and not about anything else. I am not. My primary concern is with the rights and the good of the child. The child has a right to be brought up in its own religion unless, lawfully together, its lawful parents decide to change that religion and the child, if it is of sufficient age, is prepared to go along with them—if not of sufficient age, of course it cannot do anything about it. There is a positive danger that if a child of a particular religion is adopted by a couple neither of whom has the same religion as it, its religion must necessarily be changed. Apart from the religious and spiritual aspect of the matter, the normal human happiness of that child must surely be affected by that situation if the change takes place at any time later than when the baby is in the pram.

I do not think this matter is at all as simple or as unimportant as the Minister would have us believe. A lot of people perhaps do not realise what is being done in this section. If they did, they would think twice about it and that is why once again I am trying to urge on the Minister the necessity for the caution that I think arises out of the amendment as put down and which is done for good and valid reasons. The main arguments put up against it are that it is non-ecumenical and anti-proselytising and that it does not cover the situation that where a girl adopts an oriental or other strange religion her parents would be stopped from adopting the child. I do not think any of these three arguments has sufficient validity to offset the necessity for this amendment which incidentally will not cause any problems for anybody but will prevent things happening which I think all of us would agree should not happen.

I do not think it is right for the Minister to try to argue from the recent case decided by Mr. Justice Pringle, who dealt with section 12 (2) of the old Act—to argue that that would cover this section if my amendment were in it. I am quite certain it would not because I am dealing with a totally different thing. That dealt with a situation where a couple in a mixed marriage could not adopt any child in any circumstances because they were of a mixed marriage. Under this section, with my amendment, every couple in a mixed marriage, provided they are otherwise suitable and that they can get a child to adopt, can adopt a child. It is a totally different situation from that which Mr. Justice Pringle adjudicated on. That was a situation where, no matter how suitable they were as prospective adoptors, no couple in a mixed marriage could adopt a baby in this country. I accepted that as being wrong as long ago as 1972. I accepted that that would have to be changed, not for the reasons that some of those who are advocating the change held but in many ways for quite different reasons.

In the event it was changed, not by this House in the first instance— and, perhaps, it might have been better if it had been—but by the court in a particular case. We had this the last day in relation to these various divorce cases where the Minister told me I was wrong to try to argue from one case on a particular set of facts to another. Perhaps I was wrong, but if I was he is as least as wrong today because he is doing that and doing it to a very great and dangerous extent in trying to read into Mr. Justice Pringle's judgment things that are not there and things he was never asked to decide. Above all else, whatever a judge might have to decide on this section, whether as amended or not in the future, he will never have to decide in the situation that Mr. Justice Pringle was faced with, that is, that no couple in a mixed marriage could adopt any child even if, as in that case, the child they wanted to adopt was the natural child of the mother in that marriage and the husband in that marriage was more than anxious to adopt it. That was a unique situation. It was most onerous on that unfortunate mother, but Mr. Justice Pringle went further, as I understand his judgment, and decided that to prevent a couple in a mixed marriage, even where it was an outside child, from adopting, was not reconcilable with the Constitution.

That is fair enough. That is the judge's decision, but that has nothing to do with what we are talking about here. What I am urging now in the House will not stop anybody from adopting. It will only ensure that they do not adopt a child of a different religion to each of them. It is only right and proper, if we have any regard left for the rights of a child, that we should make that provision. It will not stop any child being adopted and it will not stop any natural mother of an illegitimate child placing her child for adoption with a suitable couple.

To talk about interference with the mother's natural right of choice is wrong, because she has no right of choice. All she has the right to do is to place the child for adoption. Unless it is placed with relatives she will never know with whom it is adopted. Mothers never do know that, perhaps, some of the adoptive parents are unsuitable to adopt children. Some of them are very good, but maybe some small proportion, 1 or 2 per cent, might be unsuitable.

The board, if it had a chance all over again, might not make an order in respect of, perhaps, one per cent of cases. However, is it not just as well that the mother does not know that? As I say, she has no choice. All she has is the right to chose whether to have her child adopted or not. Once she decides to have it adopted she never knows where it goes. Therefore, her right of choice does not arise, and it is not limiting her in any way whatever to say that at least one of the adoptive parents is of the same religion as the child.

I just wish to clear up a couple of points. First, I did not rely on the recent judgment in the High Court for my opposition to this amendment. I merely mentioned the judgment of the High Court when I started my speech, giving the background to the section as drafted. Secondly, I am not opposing it on anything to do with the question of proselytism. It was the Deputy introduced that subject when he indicated that his amendment provided the protection that fell as a consequence of the High Court decision and the Government's repeal of the religious section. That is not my argument. That is one of his justifications for the amendment, and it is one I do not accept.

There is a very practical argument against this amendment. I gave one instance of where a daughter might change her religion, not necessarily to an exotic religion; she could change it to one of the orthodox religions and would be thereby prevented from having a child adopted by her grandparents by way of private placement. Again, even within the existing churches you could have the situation where a Methodist child could not be placed for adoption with a couple one of whom was a Presbyterian and the other a member of the Church of Ireland. If the Deputy's amendment were to be accepted we would have to re-enact some of section 12, the section which provides for inter-adoption between members of various Protestant denominations. There are an endless number of possibilities where worthwhile adoptions would, in effect, be barred by the requirement of the Deputy's amendment that one of the adoptive parents should be of the same religion as the child. I think it would be regrettable if worthwhile adoptions were to be prevented by reason of this.

I think the Legislature should only go so far as is provided in the Bill, namely, that where the parties are not of the same religion, this fact be drawn to the mother's attention and thereafter she would make up her mind. It would be going too far to accept the amendment which, in effect, says that, in addition to that, the child shall not be placed for adoption unless one of the parties is of the same religion.

The Deputy says I did not deal with the case—I thought I did—of the young inexperienced mother who after the trauma of the birth might not be in a position to make a reasoned judgment on being told that the adoptive parents were not of the same religion. My answer to that is that her consent to adoption can be withdrawn any time before the adoption order is made, should she change her mind when she becomes settled after the birth. In any event, that begs the question of her being able to make the even greater decision, namely to place her child for adoption at all. If the capacity of the mother to make a judgment because of the trauma of the birth were to be a consideration, it would apply with even greater force to the new provision in this Bill providing that final consent to adoption may be given at the age of six weeks. The fact that adoption workers and those experienced in this field in England who reported on adoption in detail also found in favour of this age limit of six weeks, is an argument against the suggestion that mothers are incapable of making rational decisions because of the trauma of the birth. There may be the occasional mother who is in that position but, as I say, her case is protected by the fact that the final order is not made for about six months or longer if the Adoption Board so decide on the facts of a particular case before them. I do not think there is any risk there. I think this Legislature should go no further than drawing the mother's attention to the fact that the proposed adopting parents are of a different religion to her child and, after that, it is the mother's right to decide. She may well decide that she wants her child placed with adopting parents both of whom must be of her religion. To attach a condition or attempt to give direction as to what she should or should not be entitled to do in that type of situation is going too far and it is not the business of an Act of Parliament, particularly when it would have the consequence of preventing adoptions in many cases where all the parties would be of what we commonly call the Protestant religions but, within that, would be members of different denominations. If the Deputy's amendment were to be accepted, it could inhibit many adoptions by people who are non-Roman Catholics.

We do not accept the argument that Deputy O'Malley's amendment would inhibit adoptions, as has been suggested by the Minister. The amendment placed by Deputy O'Malley is consistent with my contribution on Second Reading and, indeed, with the contributions of other Members from this side of the House.

We say that the Adoption Bill should be seen as a child centre and that the primary interest of adoption be concentrated on the child's present well-being and future. In relation to section 2, we are speaking more particularly of illegitimate births. Having studied this matter very thoroughly, my information is that effectively 95 per cent or 96 per cent of children adopted in this country are illegitimate. And, if we are speaking about children, we feel that the child has no decision in the matter of being brought into the world. Having regard to Deputy O'Malley's amendment, we say that the child should not be asked or forced to take on a religion in which he has no decision. We should like to make it clear that the point we are making on Deputy O'Malley's amendment is not a religious one. Rather the point we are making is that we feel the child is being denied its right of choice of religion by virtue of the fact that its mother may decide. We are talking here about a traumatic situation. We are not necessarily talking about adult people when we speak of mothers of illegitimate children. In some instances, the mother may be 16, 17, 18, or at the very outside, 19 years of age. A girl who suddenly becomes pregnant is asked to make a decision which will affect the religion of her unborn child for all time. Under those circumstances, we contend that the amendment we propose is a proper one. In no way does Deputy O'Malley's amendment interfere with the right of people of mixed marriages to adopt a child. That is preserved and enshrined in the Adoption Bill, 1974. In the circumstances outlined by the Minister, he says we are not properly legislating; we accept that. Nevertheless, by virtue of the Minister's section, if it remains and is passed by this Legislature, we are denying the child its right to a free choice of religion. If we take the example of a decent young girl from the country who, by virtue of unfortunate circumstances, is found to be pregnant — she may be 16 or 17 years of age only — she may argue even that she did not know how she became pregnant — we are asking this unfortunate young girl to make a decision relating to the religion of her unborn child.

As we understand the Minister's section, he is making the point that the mother can decide that the child be brought up in a religion other than that of her own. We contend that this over-rides the right of the child, the very person for whom we hope this Bill is being enacted. In this Legislature we are providing for the future of the child and properly so. We are handing the child over to people who have been found eminently suitable, having regard to background investigations and so on, to adopt the child and provide for its immediate physical well-being. The right of choice does not arise. The child is being handed over to parents who will look after its physical well-being. The child has no choice in that. It does not arise. The people accepting responsibility for the child are themselves responsible adults.

The point we make is that the choice of religion is being left to the mother who, through unfortunate circumstances, finds herself in such a situation and, as I have said before in this House, it is not for us to make moral judgments on people who find themselves in that situation. What we are here to do is provide for the future of the child. The Minister's section, as understood by us, abandons the right of the child, having regard to the decision its mother may make on its behalf. The right of free choice, from the very birth of the child, is being abandoned in relation to what many people would consider to be an extremely important matter, namely, its immediate and future religion. If some time in the future — the child having become an adult — it abandons its religion, that is a matter for itself, for the adult. It would be improper for us to prevent the adult, adopted child deciding what religion it would take on or even reject religion altogether. As we see it, that is not our function in this House. Certainly our function is to provide that the child be handed over to adopting parents, one or other of whom should be required to be of the religion of the child itself. The child has no choice in the matter. What we want to do is to preserve that choice until the child becomes an adult and may decide that it will continue in the religion of its natural mother, which would be the religion of one or other of the adoptive parents having regard to Deputy O'Malley's amendment.

On the other hand, the child may reject religion altogether; so to say that we are trying to set out the religion of the child is nonsense. We are trying to protect and preserve the right of the child to make a decision on whether the first decision was correct or not. We say that the Minister's section as it stands may abandon that right or entitlement. We are just as much entitled to say that as the Minister is entitled to make the points he has been making. We do not agree with him or accept what he says. We appeal to him to examine the Opposition proposal and have another look at it.

We must press this matter because we feel very strongly about it. We were elected to do what we consider to be correct here: it may be fashionable or unfashionable outside the House but we must bring our knowledge and experience to bear on legislation coming before us. We may be wrong. Therefore we ask the Minister to consult with others. We realise that people outside the House may have greater wisdom and knowledge of matters of this nature than we have. We ask the Minister to give us some undertaking to reconsider the section before the Bill as it stands is passed. We believe the Minister has an obligation to do that. If the Minister comes back, having consulted others who may have a superior knowledge of these things, and having heard the results of the consultation we may then accept the Minister's findings. That does not say that people outside the House should be taken as final arbiters on matters coming before the House. We make the decisions in regard to legislation and that is properly so and we make no apology for those decisions. They may be wrong decisions and, if so, they can be cured at another time. We believe Deputy O'Malley's amendment is a proper one and the Minister has not satisfied us to the contrary, that it does not protect the rights of the child.

This is a Bill which secures for all time, as we understand it, the happiness and well-being, physically, educationally and in terms of religion, and in other directions also the future of a child. As it stands, the section gives to a young woman of, say, 16 or 17 who may not be knowledgeable in wordly affairs the decision and the right to do what the section allows. While all are equal under the Constitution we believe Deputy O'Malley's amendment is eminently suitable and protects the person on whose behalf the Bill was introduced, in the main, the illegitimate child of a mother who may not know or understand the consequences of the decision she makes on behalf of her child. Through no fault of her own she may not have the education to make the decision set out in the section. Undoubtedly, she will have the assistance of highly qualified people in reaching a decision but one can visualise her coming to a decision under pressure, not deliberate pressure, but she may not be equipped to make this decision.

If the Minister decides that what we say is wrong the matter may have to be contested on the floor of the House. That is no threat. The Minister must realise that if what he proposes is not acceptable to the Opposition they have not any alternative but to take whatever course is open to them.

We would appreciate it if, before the Bill goes through its final Stages, the Minister would give some undertaking to reconsider this section and consider Deputy O'Malley's amendment further. That amendment has been circulated for some days. I think its consequences are important and I do not think another week would make any difference if the Bill were delayed to that extent through further consideration of the section and the proposed amendment. Again, I appeal to the Minister to adopt this suggestion.

Amendment put.
The Committee divided : Tá, 42; Níl, 53.

  • Andrews, David.
  • Barrett, Sylvester.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Breslin, Cormac.
  • Briscoe, Ben.
  • Browne, Seán.
  • Callanan, John.
  • Calleary, Seán.
  • Colley, George.
  • Connolly, Gerard.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Daly, Brendan.
  • Davern, Noel.
  • de Valera, Vivion.
  • Farrell, Joseph.
  • Faulkner, Pádraig.
  • Fitzpatrick, Tom (Dublin Central).
  • Gallagher, Denis.
  • Geoghegan, John.
  • Gibbons, James.
  • Gogan, Richard P.
  • Kenneally, William.
  • Kitt, Michael F.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Leonard, James.
  • Lynch, Celia.
  • Lynch, Jack.
  • MacSharry, Ray.
  • Molloy, Robert.
  • Moore, Seán.
  • Murphy, Ciarán.
  • Noonan, Michael.
  • O'Malley, Desmond.
  • Smith, Patrick.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Walsh, Seán.
  • Wilson, John P.
  • Wyse, Pearse.

Níl

  • Bary, Peter.
  • Barry, Richard.
  • Begley, Michael.
  • Belton, Luke.
  • Belton, Paddy.
  • Burke, Dick.
  • Burke, Joan T.
  • Burke, Liam.
  • Clinton, Mark A.
  • Cluskey, Frank.
  • Collins, Edward.
  • Conlan, John F.
  • Coogan, Fintan.
  • Cooney, Patrick M.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, Declan.
  • Crotty, Kieran.
  • Cruise-O'Brien, Conor.
  • Dockrell, Henry P.
  • Donegan, Patrick S.
  • Donnellan, John.
  • Dunne, Thomas.
  • Finn, Martin.
  • Fitzpatrick, Tom (Cavan).
  • Flanagan, Oliver J.
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Griffin, Brendan.
  • Harte, Patrick D.
  • Hogan O'Higgins, Brigid.
  • Jones, Denis F.
  • Kavanagh, Liam.
  • Kelly, John.
  • Kyne, Thomas A.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McLaughlin, Joseph.
  • McMahon, Larry.
  • Murphy, Michael P.
  • O'Brien, Fergus.
  • O'Connell, John.
  • O'Donnell, Tom.
  • O'Leary, Michael.
  • O'Sullivan, John L.
  • Pattison, Séamus.
  • Ryan, John J.
  • Ryan, Richie.
  • Taylor, Frank.
  • Thornley, David.
  • Timmins, Godfrey.
  • Toal, Brendan.
  • White, James.
Tellers: Tá, Deputies Lalor and Browne; Níl, Deputies Kelly and Cluskey.
Amendment declared lost.
Bill, reported without amendment, received for final consideration and passed.
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