Could I have the agreement of the House to sharing my time with Deputy Garland?
Private Members' Business. - Recognition of Foreign Adoptions Bill, 1990: Second Stage (Resumed).
Is that satisfactory? Agreed.
I take this opportunity to congratulate the Minister of State opposite. It is the first time I have been in the House with him and I would like to wish him well on his important new brief.
Last week I referred to an adoption in Peru by one Irish couple. The ordeal they outlined in regard to getting information before they went to Peru, defies belief.
Initially they got no information whatsoever from either the Adoption Board or any of the adoption societies. They were in fact told to give up any idea of adopting a child abroad.
That seems to be the case with many of the parents involved in foreign adoptions — they relied on other parents who had been through it all and worked their way through the bureacracy. These parents prepared a handout of important points of information for those planning adoptions abroad. This was done for them and they did it in their turn. The clear message was that all papers and legal requirements must be in order before the prospective adoptive parents leave Ireland.
In the case I outlined eventually these parents established exactly what the Adoption Board would require in order to have their adoption order recognised when they returned. They had to get five affidavits on domicile, Irish adoption law, there own health and certificates of police clearance, birth, marriage, finances, house ownership and religious practice. As has been mentioned so often, they had great difficulty in getting a home study report, and the social worker from another city who eventually did it for them was later reprimanded by her superiors.
In this case preparations paid off and on presentation of documentation to the Adoption Board on their return from Peru their child was legally recognised within a period of nine months.
These parents experience of inter-country adoption is not rare. Many parents have fought a lonely campaign for a number of years before the Romanian issue brought the question of foreign adoptions to public attention. I know of at least 12 Indian-Bangladese and South American adopted children living in Ireland with their adoptive parents and I suspect the numbers are much higher for these nationalities than the 30 mentioned by Deputy Shatter in his speech. Their need of recognition is as great as that of the more numerous Romanian children mentioned in the Bill. All of this is a clear case of need and circumstances overtaking public policy and legislation. Irish parents, because of their desire to adopt, have ignored the obstructions, the negative advice, and taken control of matters and forced change — and good on them for this.
One must ask seriously why there was such a conspiracy of non co-operation at official level up to now. Ranks were closed right down the line, from the Adoption Board through the adoption societies and involving the health boards.
Why is there such difficulty at various administrative levels in coping with the "foreign" aspect of adoption? Is it purely because of the legal difficulties, or constitutional complication, or is it, as has been put to me by one adopting parent, that there are undertones of rascism in some official attitudes.
One mother, prior to going to Brazil to collect her baby, was surprised to be asked by a senior social worker if she had seen a photograph of the baby, that it could be very dark-skinned.
I hope that the passing of this legislation, and the very obvious co-operation to be found on all sides of this House, will result in the same type of co-operation and support at all levels of the adoption process. We have a duty to accord the same rights and privileges to children adopted from other countries as to children who are adopted under Irish law up to this.
The experience of adoption in this country has been a very happy one, due in no small part to the commitment and integrity of those involved in the adoption process, and this I feel sure will be extended to and embrace the children coming from abroad to start new lives in Irish homes, once the legislation is through and the conditions are agreed.
The passing of this Bill will lead to extensive changes in the rules and administration of adoption work, but certain measures should be taken in advance of that date. There is a great need for a Government information and advice bureau for prospective foreign adopters. There is a need to oblige health boards and adoption societies to release copies of existing family assessments that they hold on parents for the purposes of foreign adoption and there is a need for them to co-operate now in drawing up new home study reports for other parents who are hoping to travel to other countries.
As has been said, this trend of foreign adoptions by Irish couples will continue and factors which influence this are undoubtedly the decrease in the numbers of Irish children eligible for adoption in recent years, a comprehensively greater affluence and better mobility.
The real background to this Bill is the political events in Romania which exposed a cruel regime, a regime which outlawed contraception and compelled married women to have children they neither wanted nor could cope with. The plight of the thousands of children in institutional care in Romania awakened the concern of decent people everywhere. These pictures were shown on television and in the newspapers. Many Irish couples anxious to adopt set out for Romania to bring one, or in many cases, two and three of these children into their own homes. I would question what is to happen to older children, the children who are ill, who have never had a normal home life and who will not be attractive to adopters. I wonder what the future is for these children. The younger children and the babies will continue to be adopted.
To date, according to the Department of Justice, 450 clearance certificates have been given for Romanian children. In effect this was the only official formal document that was given out for couples who were travelling and it indicated that this State would allow the child in on their return and without it the adoption applications would not be entertained. Full credit has to go to the Department of Justice for the way they have dealt with these applications.
Like others I want to see this Bill pass as soon as possible. I am aware there is a great reservoir of goodwill on all sides, and many of the difficulties perceived can be overcome with proper analysis and scrutiny. I appreciate that the Minister for Health, Dr. O'Hanlon, has real and genuine reservations about certain aspects of the Bill. He mentioned three — the eligibility of the child, the consent of the natural parents and the eligibility and suitability of the adoptive parents. I have to say I would share his concern that the consent clause should be fully respected where it is relevant. However, I also realise that it is clear that for the vast majority of these children in Romania the parental links have long been broken and consent from them would be an impossibility. The question of a constitutional test of this Bill was posed by other speakers. While I accept the advice of the Law Reform Commission that this is not deemed necessary, at the same time I feel confident that prior to the Bill being signed into law President Mary Robinson will be a very suitable arbiter of its contents.
In conclusion, an important provision which I would like to see inserted at section 12, would be a post-adoption monitoring role for the health board or the Adoption Board. Irish adopted children enjoy this in their adoptive families, so in my opinion should inter-country adopted children. I have no doubt this would be welcome by adoptive parents.
This Bill and the debate surrounding it illustrates clearly a need for a new adoption law, one that recognises the radical changes which have taken place in Irish society in the last 25 years, certainly since the introduction of the original Adoption Act in 1952.
I would hope that the Government would now address themselves to drafting such a new Act as quickly as possible. I am glad to see that the other Minister who will be involved in children Bills is now sitting opposite. I hope such a new Act would take account of the shift from Irish adoptions to foreign adoptions and the new realisation that there is a mutual desire in both adopted children and their natural mothers to get in touch with each other, and this should be possible. Further, there should be an extension of the categories now eligible to adopt. These are just some of the things that need to be changed. We certainly need a radical rethink of existing adoption legislation.
Finally I would again commend my constituency colleague, Deputy Shatter, for his work on this Bill. I also extend my thanks and appreciation to the Minister for Health for agreeing to accept the Bill. I know it is no easy act under the parliamentary system we operate for a Minister to come in and agree to take a Bill which is in his area of responsibility.
I commend the Bill and I hope it has a very speedy passage.
I now call Deputy Roger Garland who is sharing the time with Deputy Nuala Fennell.
It gives me great pleasure to speak in favour of the motion that this Bill be given a Second Reading. I am particularly pleased that for the first time in many years an Opposition Bill has been taken on board by a majority Government. Perhaps it is a sign of a more mature and responsible attitude by the present Government to the proceedings in this House. Now that this precedent has been set, may we expect a similar response on other Private Members' Bills?
My pleasure at the Government's attitude to this Bill is tempered by the deep regret that they did not take a similar attitude to Deputy Shatter's other Private Members' Bill on the Environmental Protection Agency, which was refused a Second Reading in the Dáil more than a year ago. I would remind Members of the House that the Government Bill dealing with this matter has still not come before this House.
To turn to the Recognition of Foreign Adoptions Bill, 1990, this Bill is absolutely essential, which is evident from the debate so far and from the many representations I have received from constituents and in particular from the Irish-Romanian Adoptive Parents' Group. It may not be generally realised that there is a very small number of children available here for adoption. There is a great tradition in this country of adopting unwanted children, both by parents who already have natural children or by childless couples. Many of us who are unable to have children of our own feel a lack of fulfilment in our marriage because of the lack of children. Some people have resorted to such obscene practices as using surrogate motherhood which, so far as we know has not spread to this country, and I hope it never will. It is particularly appropriate, in view of the ever-increasing world population, that childless couples should adopt, rather than seek to increase the world population by such a dubious method.
It can be truly said that this Bill kills a number of birds with one stone, in that while it deals with the recognition of foreign adoptions it nevertheless particularly targets the problems of the Romanian babies.
I would like to pay very great tribute to the courage and persistence of those couples who have gone to Romania to seek the adoption of these children. I do not need to spell out to the House the appalling conditions to which these babies are subjected. Certainly, every possible facility should be given to Irish parents seeking to adopt these children. However, care should be taken that the adoptive parents should be subject to a reasonable test of competency and resources to care for these children.
Our great pleasure at the adoption of this Bill which ensures the future wellbeing of some of these unfortunate children must not blind us to the dreadful problems in the orphanages in Romania. Only the youngest and the best are being adopted; the rest lie there in absolutely appalling conditions, especially those whose parents cannot be traced because, as Members are probably aware, Romanian law provides that no adoptions can take place without the express permission of the natural parents. Wellmeaning people and organisations have sent much aid to Romania but there are now very serious doubts as to how much of this is actually being utilised in these orphanages. Much of it is being sold on the black market or removed for personal use by many of those who are assisting in the orphanages.
There is a large number of children whom nobody wishes to adopt, those who are considered mentally retarded, because of the unspeakable regulations still in existence and the many babies and children who have AIDS. We can only do a very small amount in this country in assisting in the future welfare and wellbeing of Romanian babies by this Bill, but at least we know that some of these babies are in good homes and some Irish parents have the pleasure of knowing they have rescued children from a future of no hope.
I now call Deputy Noel Treacy, Minister of State at the Department of Justice.
A Cheann Comhairle, I wish to share my time with my colleague, Deputy Joe Jacob.
Is that agreed? Agreed.
At the outset I would like to take this opportunity to congratulate my colleague, Deputy Chris Flood, on his appointment as Minister of State at the Department of Health and to wish him every success. I was his predecessor in that Department and I know he will have many hours, and hopefully years, of enjoyment working with the excellent officials in the Department of Health.
I am very pleased to have been given an opportunity to contribute to this debate. Deputies will recall that I had the privilege of having charge of the Child Care Bill as it passed through this House. That Bill passed all Stages before Christmas and I look forward to introducing it in the Seanad very soon.
The Child Care Bill represents the most comprehensive reform of the law in relation to the care and protection of children since the foundation of the State. As is indicated in the Programme for Economic and Social Progress, the Government are committed to implementing the Bill, when passed, on a phased basis, and to gradually increase the number of social workers and other staff employed in the child care services. A sum of £1 million was provided in this year's budget to begin work on the implementation of the Bill and additional funding will be provided in subsequent budgets.
Deputies will also recall that the Child Care Bill was considered by an all-party special committee of the House. I will be the first to acknowledge the important contribution made by the representatives of all parties on that special committee. The issues which arose at special committee were discussed and examined in a constructive non-party political manner, and it was possible to reach a consensus on many of them. For my part, I was very happy to accept all worthwhile amendments to the original provisions in the Bill in the spirit in which they were proposed by the various representatives. There is no doubt that the Child Care Bill was greatly improved as a result of the deliberations of the special committee and I would like once again to express my sincere gratitude to those Deputies from all sides of the House who are associated with it, and particularly to those who participated in the committee.
Based on my experience with the Child Care Bill, I am confident that the special committee appointed to examine the Recognition of Foreign Adoptions Bill will be successful in developing and improving the proposals contained in it to the extent necessary to ensure that it will provide a secure legal framework for the recognition of foreign adoptions.
Before I proceed to highlight some of the proposals in the Bill about which I have reservations, I would like to acknowledge Deputy Shatter's initiative in introducing the measure. His action was motivated out of concern for those parents who have adopted children in Romania and in other countries and who are encountering various difficulties with their adoptions.
I would also like to pay tribute to my Government colleagues for their positive response to the Bill. The decision not to oppose a Second Reading of the Bill demonstrates that the Government are very concerned about the problems being experienced by the adoptive parents of foreign children, and that they are committed to finding a workable solution to their problems. It is particularly gratifying to note that the Government's anxiety to avoid a divisive potential wrangle on this sensitive issue, which would have reflected badly on this House, has been publicly acknowledged and warmly welcomed by the group representing the adoptive parents of Romanian children. The suggestion made in some quarters that the Government's decision was influenced by other considerations is unworthy of comment.
We are all agreed on the desirability of enacting legislation which will clearly define the circumstances in which a foreign adoption is entitled to recognition in the State. Indeed, the Government were already in the process of preparing their own legislation to deal with the matter when they graciously decided to accept the principle of this Bill for the reasons that I have outlined.
Since the validity or otherwise of a foreign adoption order under Irish law affects a matter as fundamental as the adoptive parent's entitlement to exercise parental rights with respect to the child, it is very important that the legal criteria for recognising a foreign adoption should be explicit. It is equally important that the criteria should reflect the standards and safeguards applicable in our own adoption process, be in conformity with the Constitution and have due regard to our commitments under international conventions.
The Bill proposes a number of mechanisms by which a foreign adoption would be entitled to recognition.
The first two mechanisms are related to the domicile and habitual residence of the adoptive parents at the time of the adoption. I have no objection in principle to these proposals. Of course, regard must also be had to whether the foreign country in question operated a civilised system of legal adoption and whether the adoption has substantially the same legal consequences as an Irish adoption.
Recognition principles based on domicile and habitual residence are in line with the recommendations made by the Law Reform Commission. The important point to bear in mind in relation to these connecting factors is that they would recognise the long standing connection that the adoptive parents have with the foreign country where the adoption takes place. In some instances not only would the adoptive parents have lived in the foreign country concerned for a considerable period of time but they would also have been born there. The effect of the provision in relation to domicile would be to put the apparent position at common law on a statutory footing. As my colleague the Minister for Health, Dr. O'Hanlon, has already pointed out, recognition based on domicile and habitual residence would be of no benefit to those Irish people who travelled to Romania or elsewhere for the sole purpose of adopting a child.
These cases are without question the most difficult cases for which to legislate. It is unfortunate that the Law Reform Commission provide no guidance on the matter. Indeed, the Commission make it clear in the introduction to their report that they do not deal with cases where Irish people travel abroad for the sole purpose of adopting. It is important to emphasise this point to counteract suggestions made by some Opposition Deputies that the Law Reform Commission's proposals cover these cases.
In order to set the record straight I would like to quote the following two paragraphs from the introduction to the Commission's report:
At the same time, the limitations on our present inquiry should be understood. As we have pointed out, it seems likely that an increasing number of Irish parents are seeking to adopt children abroad. We have been informed by the Adoption Board that they receive a small number of applications from such couples who have "adopted" children abroad and who now wish to adopt the child under Irish law. Such overseas "adoptions" have usually been effected in Third World countries. In the majority of cases dealt with by the board, the requirements of Irish law as to eligibility for adoption and the obtaining of consents were met. In others, however, they were not, so that it was not possible for the Board to grant the applications for adoption under Irish law. Since the adoptive parents in such cases are neither domiciled nor even resident for any significant period of time in the country of adoption, it is obvious that such adoptions would fail to meet the threshold requirements of any systems of recognition of foreign adoption decrees which uses normally acceptable criteria. It is unfortunately the case that adoptive parents in this position will not necessarily be assisted by the proposals in our Report if they are implemented.
The Commission fully recognises the problem created by such adoptions and accepts that they are likely to increase with the decreasing number of children available for adoption in the State and the continuing rise in the population of Third World countries. It is generally acknowledged, however, that this problem can only be tackled at an international level and it has already been decided that the 17th session of the Hague Conference on Private International Law in 1993 will be devoted to the finalisation of a convention on The Adoption of Children Coming from Abroad. In these circumstances, it would be premature for the Commission to embark on an examination of this particular topic.
It is clear from this quotation that the Law Reform Commission's report does not provide a working basis for creating a framework for the recognition of this type of foreign adoption. In fairness to the Commission, it must be borne in mind that the Commission's report was completed before the situation in Romania developed.
The Bill proposes to deal with this type of adoption by providing for their recognition based solely on the nationality and residence of the child. I share the grave reservations expressed by previous Government speakers about the acceptability of this proposal. As the Minister for Health, Deputy O'Hanlon, has already set out in detail the serious implications of the proposal, I shall confine myself to some general comments on it.
The first point I would make is that the nationality and residence of the adopted child is but one of the factors that needs to be taken into consideration. Regard must also be had to the type of adoption system operated by the foreign country in question, the consent of the natural parent, the eligibility of the child and the eligibility and suitability of the adoptive parents. These considerations also arise in relation to the other recognition mechanisms proposed in the Bill. They are by no means exclusive to one mechanism. This is one of the matters that will need to be addressed at Special Committee.
I believe that any criteria for the recognition of foreign adoption orders granted to people who are domiciled or habitually resident here at the time of the adoption must include consideration of their eligibility to adopt under Irish law. Since their main connection is with this country rather than the foreign country surely their entitlement to recognition must depend, among other matters, on whether they fulfil the eligibility requirements of our own adoption laws. It would be manifestly contrary to public policy to provide for the recognition of a foreign adoption order granted to an Irish couple domiciled here whose marriage is not recognised by the State and who are therefore ineligible to adopt here. Such a provision would also be in contravention of the European Convention on the Adoption of Children, to which the State is a party. I must point out that section 4 of the Bill as it stands does not exclude such an adoption from recognition. This is another matter that will have to be examined at Special Committee.
I also find it difficult to understand the omission from the Bill of any reference to the consent of the natural parent or legal guardian. I cannot envisage a single set of circumstances in which the recognition of any foreign adoption could be considered without reference to whether the necessary consents were given or dispensed with on appropriate grounds.
Under our own adoption laws the consent of the natural parent or legal guardian of the child is normally required for the various adoption procedures. The Adoption Board are precluded from making an adoption order for a child without the necessary consent unless the board are satisfied, following detailed inquiries, that the person whose consent is required either cannot be found or is mentally incapable of giving consent. These are the only two grounds on which the board may dispense with consent without the necessity of referring the matter to the courts. In all other cases the authority of the High Court is required to the making of an adoption order in the absence of parental consent.
I might also point out that the European Convention on the Adoption of Children also prohibits the grant of an adoption without the consent of the natural parent or legal guardian save on exceptional grounds determined by law.
It is clear from the foregoing that consent is a fundamental feature of any civilised system of legal adoption. It goes without saying that consent must also be included in any criteria for the recognition of foreign adoptions.
I am pleased to note that Deputy Shatter has attempted in section 6 to define the criteria applicable when the Minister for Health is called upon to determine whether a particular country or jurisdiction is entitled to designation. It will be essential to broaden the criteria proposed to include the consent of the natural parent or guardian and other relevant factors. I also consider that the same criteria should apply irrespective of who is called upon to determine whether a particular foreign adoption is entitled to recognition. Section 9 as drafted provides no guidance to the High Court as to the criteria by which it is to decide whether an adoption is entitled to recognition. Surely the court should have regard to the same matters as the Minister for Health would be required to have regard to under section 6.
One fundamental question the Special Committee will not be able to resolve is whether it is constitutionally permissible to recognise foreign adoptions made in respect of children born within marriage. Only the Supreme Court could give a definitive ruling on this issue. At this stage it is not even know whether an Irish adoption order may be made in respect of a foreign child born within marriage under the terms of the Adoption Act, 1988. My colleague, Deputy O'Donoghue, has already expressed the view that it might be necessary to amend the Constitution in order to allow for the recognition of foreign adoption orders relating to children born within marriage.
In this context I should like to correct what Deputy Therese Ahearn told the House last Wednesday in relation to the Law Reform Commission. The commission did not state in their report that the Constitution does not prevent the recognition of foreign adoption orders made in respect of children of married parents. What the commission said was that the recognition of such orders would not necessarily be inconsistent with the Constitution. This suggests to me that the commission, like the rest of us, are unsure whether such a provision would be in conformity with the Constitution.
I welcome the Minister for Health's announcement to the House that he is already in the process of arranging for the health boards to undertake home study assessments for people seeking to adopt abroad. In the context of Romania, this move coupled with the establishment of a centralised committee for adoptions there should facilitate contact and co-operation between the authorities in the two countries in relation to future arrangements for the adoption of Romanian children by Irish people.
I want to give one word of warning about the Bill. The committee dealing with the Bill must be given ample time to deliberate and adjudicate on the many legal and constitutional complexities involved in it.
I should like to conclude my contribution but emphasising that we all appreciate the anxiety of Irish parents who have adopted children abroad to have their position regularised under Irish law and that we are all committed to finding a solution to their problems which will stand up in law. The difficult task of achieving this will fall on the all-party Special Committee appointed to examine the Bill. I wish that committee well in their deliberations and I sincerely hope they will be as successful as the committee who considered the Child Care Bill. I wish the Bill and the committee every success.
I should like to take this opportunity to congratulate Deputy Chris Flood on his recent and well merited elevation to Minister of State and to wish him well in his new office. Coming as we do from adjoining constituencies we have had occasion in the past to communicate often. I know he will carry out his new duties extremely well.
The aims and objectives set out in Deputy Shatter's Bill are commendable. He seeks to provide a mechanism which will enable Irish couples to go abroad to adopt children in need. Unfortunately, the Bill as it stands falls far short of what is required but no doubt the appropriate adjustments and improvements will be made to it on Committee Stage.
I am very pleased that the Minister and the Government have decided not to oppose the Bill in view of the major social implications involved. Many caring Irish couples have gone to Romania, for example, to adopt babies who were living in atrocious conditions. These are wonderful caring people who provide good homes for these children. It is of the utmost importance that these good people are not exploited.
At present we in Ireland should consider ourselves very fortunate to be in such a comparatively affluent situation as to be able to consider adopting children from abroad. We should not forget that not so long ago, through a combination of poverty and stigma, many young unmarried mothers were forced to go to England where their babies could be adopted and that many of those who had their babies here had to give up their babies for adoption to people from the US, Canada, and Australia because there was no proper provision in our law for their adoption by Irish people. Thus, it was a sense of national shame that led to the passing of the 1952 Adoption Act which established legal adoption here for the first time. It would serve us well to remember that piece of recent social history when it comes to considering legislation in this area.
We would also do well to remember who adoption is for. It is not, as is sometimes thought, a romantic solution to the problem of childlessness. Adoption is a service for children and their parents, first and foremost, and is not primarily a service for childless couples. It is also worth keeping in mind the short history of inter-country adoptions which has really only existed since the end of the last world war. This issue has been the subject of studies by the UN since 1953 culminating in the excellent 1986 UN resolution which made special reference to foster placement and adoption both nationally and internationally.
Section 4 of Deputy Shatter's Bill provides for a mechanism whereby foreign adoption orders could be retrospectively recognised in this country provided they were made by a lawful authority in the country of origin. This provision presupposes that both countries would have similar laws and adoption procedures. Irish adoption practice is of a very high standard and is one of which we can be justifiably proud. However, the same cannot be said of the adoption practices in some other countries. Children are not valued in some countries and child care practice is of dubious quality. Consequently we need to be more rather than less careful in how we deal with such countries. What might be common practice in these countries might be illegal here. For example, while it is illegal in Ireland for third parties other than registered adoption societies to arrange adoptions it is normal in some other countries for all manner of third parties to do so. How can we accept such standards without creating a two-tier system? It is illegal for money to change hands in adoption cases here, but such practices are common place abroad. We must not appear to condone or collude with what may amount to baby trading. Unfortunately the Bill as it is drafted contains no in-built mechanism to avoid such malpractices.
Another major deficiency in the Bill is that it does not envisage a role for the adoption board, the regulatory body for all adoptions in Ireland. If we have two different systems for granting adoption orders, are we not creating two different types of adoptees and in so doing creating two different types of citizens? It would clearly be unconstitutional and totally unacceptable to establish any form of second-class citizenship. The January issue of The Irish Law Times criticised this Bill for excluding the adoption board from adoptions, and I concur with that view. It is extraordinary that the Adoption Board is excluded from a Bill which purports to put all adoptions here on an equal footing. Why is it necessary to set up a two-tier system, one for indigenous adoptions and a quite separate one for those from abroad? This seems rather illogical if the aim is to have a unified system. There might be some coherence in this plan were we dealing with countries which have laws and adoption procedures akin to our own, for example, other EC countries, but this is patently not the case with, for example, Romania.
The Law Reform Commission report on inter-country adoption which Deputy Shatter quoted extensively but rather selectively recommends that we should have a mechanism to recognise adoptions from countries with laws and procedures similar to our own. Countries like Peru, the Philippines and Romania, due to the levels of poverty and oppression, cannot provide the safeguards with regard to adoption that we consider necessary, and therefore it is up to us to provide them. I would hate to think we would leave ourselves open in any way, even indirectly, to becoming involved in child trafficking. I would like to protect Irish couples from being exploited.
It is estimated that in Brazil alone 1,600 children a year are abducted for the purpose of sale to wealthy foreigners. In Italy it is not unknown for the Mafia to become involved in auctions of healthy white babies. Last year a woman from South America successfully fought a case in an Israeli court for the return of her child which had been taken from her illegally. Do we want to involve ourselves in this aspect of foreign adoption? If not, we must install proper safeguards. This Bill as it stands does not do so, and indeed could open up opportunities to exploit children and adoptive parents.
Section 6 (b) of the Bill states that there should be: "as far as is practicable, a proper inquiry relating to the adopter or adopters, the child available for adoption and the guardian or guardians and natural parent or parents of the child carried out by a public or private authority or by a properly qualified person with expertise in the area of adoption". By not insisting that this work be done by bona fide, suitable qualified people, it seems Deputy Shatter is prepared to accept practically anyone, any middleman or go-between, as a suitable private authority for the purpose of adoption. If he wishes to exclude undesirable third parties he should be guided by our own Adoption Act, 1952, and make it explicit. It is perhaps noteworthy that even in Romania where corruption is still rife new regulations have been introduced to control unscrupulous baby traders from exploiting foreigners.
What constitutes a proper inquiry? To say the least, this is vague in the Bill. It does not insist, for example, that the consent given by the parents should be a fully informed one. As Deputy Shatter knows well, the Supreme Court has specified how important this is. These are not mere technicalities; they go right to the core of the matter. No adoptive parent should be exposed to any doubt that the child placed with them was placed properly and with due regard to the rights of his or her parents. At a later date they may have to answer very searching questions from the child, the most difficult of which may well be "Why was I adopted?". It will not be enough to explain about the political situation, poverty and so on as the next question from the child will be "Were all the other children in my country adopted?", to which the answer will have to be no. This leads logically to the next question: "Why me? Of all the children in my country why was I not able to stay with my parents when other children could?" Without saying "Because your birth parents did not want you", which of course would be extremely damaging to the child, this question can only be answered with a combination of skill and intimate knowledge, gleaned by an impartial, properly trained and properly motivated person. A mere inquiry does not necessarily convey the degree of tact, concern or objectivity that is required to carry out this most sensitive task.
Deputy Shatter has gone on record as criticising the Government for what he termed a knee-jerk reaction to this issue, but he should know from his time on the Special Committee dealing with the Child Care Bill, which was excellently handled by the Minister in front of me, a committee of which I was also a member, that this Government take a cautious and thorough approach to complex issues concerning children. The same approach will be evident in this case.
The central problem is not what is happening in this country in relation to the adoption of Romanian children. That situation is only a symptom of a greater problem, namely, a history of arch conservative laws and practice in the area of adoption generally. It is fortuitous that the two events have crossed: the dramatic events leading to the collapse of the totalitarian regime in Romania led to a significant number of Irish citizens adopting abandoned Romanian children on the one hand, and on the other, the State has failed and neglected to legislate for the recognition of foreign adoptions in any circumstances. This failure had been addressed by the Law Reform Commission and their report was published in June 1989, in advance of the Romanian upheaval.
The need for, and the debate on, the recognition of foreign adoptions existed independent of the events in Romania. Needless to say, however, that without those tragic events so graphically described and witnessed in many media reports, we, as legislators, would not have found time or interest in addressing this issue, of recognising foreign adoptions. The House, therefore, is thankful to Deputy Shatter for the Bill and to the Government for accepting it for consideration on Committee Stage, but that is only as it should be. If this House is ever to attract people as Members who have the expertise and knowledge to enhance our work as legislators, then a much more accommodating approach to Private Members' initiatives and interventions needs to be undertaken.
The Law Reform Commission have acknowledged the expertise of the mover of the Bill. Deputy Shatter was one of only six people who made observations on their consultancy paper on the matter and the only such person from outside Government or State agencies concerned with issues surrounding foreign adoption. It will be a source of encouragement then for other Members and groups in Opposition that this excellent piece of legislation will be moved, with Government support, to a Select Committee of the House and dealt with thoroughly there.
The Workers' Party will give their fullest support to the Bill in Committee as they do at this Second Stage. We anticipate and expect that the composition will be as with the previous Special Committees on Company Law, Child Care and Marital Separation and will involve a Workers' Party Member or Members. A place and opportunity should also be afforded to Independents in the House on this Committee Stage.
I intend to come back to the provisions of the Bill and deal with some of the Minister's reservations later. It must be expected that the approach of Government on Committee Stage will be in the spirit of offering practical help and support to all parents who have adopted children abroad and that the experience of the Judicial Separation Bill will not be repeated. In the select committee dealing with that Bill the Government sought to dismantle the best provisions and were only forced to accept a workable formula by the will of this House, who voted for the recommittal of the Bill to Committee in the face of a negative attitude to its provisions by Government.
It must be noted with concern the many reservations voiced by the Minister and other speakers on the Government side in their contributions and reference to if not reliance on the restrictions — selfimposed — of the Law Reform Commission report on the subject. Many parents with children adopted outside the State, in Romania and elsewhere, are appreciative of the progress achieved here last week but are still worried that what is, or may be, eventually cobbled together by us, will not meet their requirements or needs. I want to urge the Minister to adopt — if that is not importing too strong a pun — a broad and flexible approach to this issue and to avoid a party political row on issues at the Committee. I must warn him that if he proceeds to Committee carrying many of the false issues or artificial constraints evidenced in his contribution, The Workers' Party will be there to take him on and to resist his very narrow attitude. We believe that all genuine parents who have adopted children abroad should — and must — be accommodated in our legislation and this can and should be achieved.
It is a fact not often appreciated that the State did not legislate on adoption until 1952. In the first 30 years of this State's existence no laws were available to the courts or to citizens to deal with or to regularise adoptions, at home or abroad, involving Irish citizens. At its first attempt in 1952, the State took a very cautious and conservative initial step; the provisions of the 1952 Act allowed for adoption in the narrowest terms conceivable, of children between the ages of six months and seven years who were orphaned or born outside wedlock.
In his seminal book on Fundamental Rights in Irish Law and Constitution, the late Professor John M. Kelly summed up the matter graphically, and I quote from his text at page 239 as follows:
Previously there was no legal adoption system in Ireland, and adoptive parents were faced with the possibility that the mother of an illegitimate child adopted by them might demand back her child, even after the lapse of many years. To such a claim only the strongest considerations of the child's welfare would provide an answer. The adoptive parents had, as such, no rights.
The implementation of the Act and its subsequent interpretation by the courts has been added to and built upon by our Judiciary. As a result the law has become almost stagnant and proves very difficult to operate. The backdrop of the provisions of the Constitution and the family in Article 41 has provided a sure foundation for this conservative, if not impossible, position. The legislators undoubtedly framed the 1952 Act with the provisions of Article 41 in mind. Consequently, no legitimate child born in wedlock could be adopted, no matter what the circumstances. This position appertains up to the present day except for a modification of the law in the Act of 1988 and other minor alterations in the Acts of 1964 and 1974.
Equally, to be adopted, a child must ordinarily be resident within the State; thus, Irish parents living abroad for work or other reasons, could not have their adoptions accepted as of right under existing legislation on resuming residency here. It was not until 1974 that the principle that the welfare of the child should be the dominant and paramount consideration was incorporated in our law. For the first time, 50 or more years after the State was founded, we wrote into our laws a provision that moved our adoptions away from the idea, as one commentator, Father James Good, said in an article in Legal Adoption in Ireland in 1971:
The child is the property of the mother and short of killing or physically maltreating it, she can do just what she likes with it.
That is a very narrow interpretation of the concept of the family provided indirectly by the Constitution in Article 41.3.1º and cautiously interpreted by the courts and it has meant that only married couples, in the main, would be allowed to adopt. Two people applying must always be married and single applicants must be a natural parent or close relative of the child. At a time when other countries have regard for the concept of the family as something not necessarily founded on marriage or indeed based on the union of opposite sexes, we are still caught in a narrow straitjacket that will continue to cause unnecessary hardships and difficulties in this regard. The interjection of the Constitution and the regard for non-nationals before our courts in matters of the family have been very narrowly and unnecessarily harshly interpreted. This is no better illustrated than in the case of Mr. Antonio Tamburrini as set out in the Law Reform Commission's report at page 4. I will quote the facts of that case to illustrate how ridiculous our laws are and as they operate in regard to non-nationals before our courts:
Here, an Irish woman had gone to live in Scotland where the gave birth to a boy, outside marriage. She sent the child back to be reared by her parents in Ireland, and over the years contributed regularly towards his maintenance. When the boy was four, she married a divorced man in Scotland, who was not the child's father. The following year she and her husband formally adopted the boy under the provision of the Adoption of Children (Scotland) Act, 1930. They later sought custody of the child from his grandparents, who resisted their request.
The High Court rejected the application of the mother and adoptive father, and the child was permitted to remain with his grandparents. The Court was primarily concerned with the child's religious welfare, which, it felt, would not be served by moving the child to Scotland.
These situations cannot and should not be allowed to continue. There must be a willingness here to ensure that in placing the interests of the child as the paramount consideration, we do not allow the narrow Catholic or conservative attitudes of past years to influence or deflect us from the job to be done, namely, the acceptance in greatest measure of the Bill before the House. This is imperative when we see a lead now being given by our courts in this area and in a liberal direction.
The Supreme Court, in the judgment on the reference to it by the President of the 1988 Act, had little or no difficulty formulating a view that the family as an institution would be strengthened and further protected by allowing children of wedlock to be adopted where the child had been abandoned or deserted of parental care. The court rejected the narrow attitude heretofore held. In page 11 of the report of the Law Reform Commission it said:
The Court rejects the submission that the nature of the family as a unit group possessing inalienable and imprescriptible rights makes it constitutionally impermissible for a statute to restore to any member of an individual family constitutional rights of which he has been deprived by a method which disturbs or alters the constitution of that family if that method is necessary to achieve that purpose.
This must be taken as a guiding light to our deliberations and, with that attitude and a little ingenuity on all our parts, we can provide a solution for all parents and children concerned. If we continue to waive the Constitution or bend to a narrow minded lobby, then we will get nowhere.
Speaking of narrow mindedness, special mention must be made of the provisions of the 1952 Act, in particular section 12, which required the parents adopting to be of the same religion as the child and parents or mother, where the child was born outside wedlock. As a result, parents of a mixed marriage could never adopt and this continued until 1974 when the High Court found the provision to be unconstitutional. Now, under the 1974 Act, some relief has been afforded to adoptive parents in a mixed marriage.
Finally, some mention must be made of the role of the adoption societies and the Adoption Board in perpetuating a regime of conservatism in their vetting and assessing of suitable applicants. The unbelievable intrusions visited on applicants by the societies, in meeting their own interpretations of the law and its requirements, are unbelievable in the extreme. Many parents to whom I have spoken simply abandoned all hope in the face of the standards and inquiries levelled at them. Many more tell of taking up churchgoing as a necessity to maintain appearances for the societies. We must at some stage address these issues if we are to deal properly with the problems now facing us, and which exist for all prospective adoptive parents at home or abroad.
There is a feeling that adoption is in some way unreal and not to be encouraged. Our tardiness as a State in dealing with matters of adoption is a reflection of this. To adopt from another country or race is taken to be even more unreal in the minds of many. In a rapidly changing and expanding world of easy travel and inter-country trade and commerce, we should now recognise that adoptions outside the State are a permanent phenomenon, as natural as they are inevitable.
This Bill allows us to recognise these facts and enables us to respond intelligently to this situation. Adoption is a normal and natural response to circumstances of need involving children and parents alike. Nothing should be done to create artificial and narrow minded obstacles in the way of the accommodation of all adoptions that are based on the best interests of needy children and which meet reasonable standards. In this context, therefore, we should look at the need for the current legislation. There are some points which need to be underscored. First, there is no law governing the situations of foreign adoptions; secondly, adoptions at home are decreasing annually and do not meet our home needs. Third, foreign adoptions are a normal and ever increasing feature of family life and should be so treated affording equality of treatment and a caring approach. Fourth, the efforts of well meaning adoptive parents and foreign children must be respected and supported.
In this regard it is a gross disservice to those outside the House who have raised this issue, the mover of the Bill and those who have sought to support its provisions to suggest that we want to facilitate the trafficking of children. The Bill if looked at carefully will be seen to be comprehensive in its approach and design and capable of meeting any of the reservations expressed, particularly by those who have suggested that trafficking might be accommodated in some way by the Bill.
Fifth, the standards applied and the requirements which have to be met in many other countries, including Romania, easily meet the standards expected here and should be accepted. Furthermore, a bilateral scheme at national level should be established. One of the lies which has been thrown in obliquely to this debate, in the context of Romanian adoptions, which I will deal with shortly, is that the standards there are not as good as those laid down in this State to date.
Sixth, the health boards and the Adoption Board should become involved in the area of foreign adoptions and resources made available to those seeking to adopt abroad.
Seventh, in the instance of Romania, the standards are high and exacting. For example, the consent of the mother or, where she cannot be contacted, that of her parents is required. No Romanian child in Ireland has been brought here without such consent. Furthermore, a full social inquiry must be presented by the adopting parents. It has been pointed out that adopting parents have gone to Britain and elsewhere to seek professional aid and support in providing such reports because of the absence of such support at home. A court in Romania must also approve any adoption order while a 15 day interregnum exists once the court has approved the order to allow reflection and reconsideration by both the natural and adoptive parents. Therefore, there is no fault or deficiency in the Romanian standards which would inhibit the Minister, once this Bill becomes law, from entering into a bilateral arrangement with that country.
I now want to deal briefly with the Minister's approach to this Bill. I believe that he misunderstands the law and that other Members on the Government side of the House have unwittingly borrowed his arguments without first considering them. In particular, he believes that an Irish court or statute dealing with foreign adoptions would require all the same rules and standards of the foreign country making the adoption order as would be applied or required at home. This is not so and unless the Minister irons out this matter satisfactorily before the Bill is dealt with by the Special Committee he will persist there in pursuing unnecessary issues. By suggesting, in the context of the foreign adoptions, that all domestic standards should be met before any agreement can be entered into or recognition can be given to such adoptions we are going to go absolutely nowhere despite the magnanimous gesture of the Minister to allow the Bill proceed to Committee Stage.
Let me give an example. The Minister stated that a child born within marriage may not be adopted. However, I would argue, as I hope would others, that such a child should be susceptible to adoption. The Minister stated that he could not support this as part of some open ended scheme and "it is not clear whether it is constitutionally permissible". The simple response is that it is constitutionally possible as it is not a question for our Constitution. The adoption is a matter instead for Romanian law and constitution. Once we are satisfied with the overall practice and standards and enter a bilateral arrangement, under section 5, the adoptions may proceed and our courts would be entitled to recognise and act upon them. Therefore, it is up to the Minister in looking at the arrangements which exist in another country, under section 5, to say that we can enter a bilateral agreement. Once we enter into such an arrangement that would put an end to any doubts as to whether that arrangement meets the terms of the Constitution.
Our Constitution safeguards the rights of Irish citizens and works to protect the institution of the family. It is up to the Government to decide if the rules of practice and law, and the standards applied in Romania or other countries, are acceptable, and once they have been designated as acceptable all the child or the adoptive parents need do to give full effect to that adoption is produce a valid order of a competent authority. This is analogous on all fours with the way foreign divorce orders are given the force of law and recognised here by our courts. It is ridiculous in the extreme to suggest that we have to hawk our Constitution around the four corners of the earth to see if the arrangements there are in keeping with it. This reflects a fundamental misunderstanding of the principles of law and the interchange of laws between nations. Unless the Minister, and the Government, iron out this misunderstanding of the law we are going to get bogged down with endless problems at the Special Committee and repeat the mistakes made when such a committee dealt with the matter of judicial separation.
The standards of the Romanian adoption procedures are such that no Minister or Government should hesitate for one moment in accepting them. It should be pointed out that there would be nothing to prevent a foreign natural parent coming to our country to challenge the adoption order before the courts. This is true in the case of all adoptions whether made here or abroad. By bringing in the Constitution the Minister has blurred the lines of distinction between the domestic rules of law to be applied to Irish adoptions at home and the rules of private international law to be applied by Irish courts in accepting Irish adoptions made abroad.
The same reasoning or misunderstanding has been applied by the Minister in touching on other perceived problems, such as the consent of the natural parents being an absolute prerequisite to any adoptions recognised by the courts here. Given the horrific events which can occur, for example, famine, natural catastrophe or the mad-cap proposals of Ceausescu in the seventies and early eighties that mothers produce babies regardless of whether they wanted them, a Minister may well say that we can dispense with the absolute prerequisite of the consent of the natural parents. That is not the case in Romania but we must reserve the right in law for a Minister to look at each case, country by country. Those who suggest that a constitutional bar exists fail to recognise the distinctions which exist between constitutional requirements at home and the rules of private international law.
A further requirement to be met here is that the age of the child needs to be a minimum of six weeks. The Minister stated that, perhaps, we should demand this of laws abroad. Again, circumstances may arise where a child younger than six weeks deserves to be adopted. Should we throw out the proposition that there is something in our Constitution which might make that difficult and suggest that one reason for not allowing the Minister to proceed is that we may end up with a two-tier adoption system between people lucky to adopt at home and others who have the courage to go abroad? We should not talk about such unrealities. We can have a caring and broad approach to this problem or we can devise schemes and obstacles that need not and should not exist and that will defeat the purpose of what we wish to achieve.
The Minister goes on to raise the problem of join adopters being of necessity married and-or living together. Again, the Minister borrows the European Convention on Adoption as an argument in aid. Let us remember that instrument dates from 1967 and we have moved on 20 years. Perhaps it is time to review that document and where it interferes with and impedes the progress of enlightened legislation to meet the problems we want to deal with here and which the people who are concerned in Romania want us to deal with, let us derogate from all or any of those provisions of 1967 that do not help us. Let us not look for obstacles where they do not exist.
Single parent adoptions are argued against because they would in some way introduce two-tier or unconstitutional considerations. Again this is an artificial introduction of an obstacle that need not concern us. There may well be circumstances existing here at home involving people adopting here or elsewhere who are single people, who because of the absence of divorce here are not able to marry but have stable relationships that can be established on comprehensive social inquiry. If that is so we should be working in our legislation to facilitate those people as well.
Finally, the Minister is somewhat ingenious in his drawing up of arguments in quoting this spurious passage in the Irish Law Times report saying the same standards should apply. I disagree with that editorial. I believe a Minister who would adopt a comprehensive approach, an approach that should be caring and seeking to help solve a problem rather than create obstacles, would be prepared to stand up to the reasoning there. In any event, the sad, sadistic history of Romania under Ceausescu makes a case for a departure, especially in regard to children of married couples, or for the dispensation of the mother's or parents' consent in particular instances. Otherwise the provisions of section 12 involving the health board and contact there comes into play so that no unstable persons, as in the instance given in the Irish Law Times report and borrowed by the Minister, or couple would be facilitated by any other country abroad. If we involve the health board they will then ensure that on referral back such a couple or person going abroad would not be accommodated.
If we want to create difficulties we can do so; there is no problem in that. However, I say to the Minister and those who would seek so to suggest, the area is not necessarily as complex as we are led to believe. An approach with an open mind and the will to find solutions will guide and aid us. The basis for a comprehensive address to the problems is well laid in the provisions of this Bill. Therefore, it deserves the support of this House not just on Second Stage; it deserves an enlightened and comprehensive approach when we come to Committee Stage where I have no doubt we will put together a Bill that will meet the needs of all the people who are concerned and who are watching us so closely today.
Having listened with interest to Deputy McCartan's contribution over the past half hour, I must say I was struck by how simple things are in his world. In the course of the half hour he succeeded in doing away with the Constitution, the European Convention on Adoption, the UN Charter on Children's Rights and God knows what else from other countries in which I am not too aware of the law. If things were that simple I cannot understand how a Bill like this was not introduced ages ago and passed by the House.
I heartily concur with his opening remarks, that it is good the Bill is going to a Special Committee of the House because it concerns a sensitive issue, but I think the best way to avoid party political rows on the Committee would be to refrain from implied threats about what his party will do if they do not get their own way. He quoted one example of a Special Committee of the House and the problems that arose. It would have been better in the context of this Bill to cite a more recent example of a Special Committee of the House, that on the Child Care Bill on which Deputy Sherlock and both Deputies opposite here served. There was a spirit of co-operation and a good atmosphere on that Committee and Deputies on all sides contributed and were constructive. I hope this Committee will be likewise.
Nobody with any vestige of sympathy who witnessed the harrowing scenes of children in orphanages in Romania following the fall of the Ceausescu regime could contemplate standing in the way of any legislation that would allow the children we saw there to escape from the living death in which they exist. Nobody who claims to have an ounce of humanity could contemplate allowing bureaucracy or red tape to hold up any procedure that might improve the lot or alleviate the sufferings of the innocent victims of an unjust and corrupt regime.
The issues which give rise to the Bill before us are very emotive and sensitive. We talk about the plight of the children in Romania, the rights of children and their parents, family rights and obligations under the Constitution and various other constitutional questions. Because the question is emotive and sensitive we, as legislators, must treat it sensitively, but we would be failing in our duty if we were to agree to pass legislation in this House which is based purely on emotion and has little regard for constitutional or legal implications in the future.
While, in principle, the Bill before us is a good and necessary one and the sooner it is passed the better, I feel there are flaws in it. I know the parents who have adopted Romanian babies in particular regard it as answering all their problems and resolving a very difficult situation for them and for their children. It would be wonderful if life was as simple as that. I think no Deputy on any side of this House would not rush to embrace any legislation that would solve this problem very quickly. We all want to see that type of legislation passed through the House as quickly as possible. I am sure were such a Bill put forward it would get all-party support very quickly and could be passed within a matter of hours. That has happened in the past with important legislation. Unfortunately life is not that simple, the solution to this problem is not that simple, and I presume Deputy Shatter is not that simple either. As a solicitor and a recognised expert in the area of family law I know he is sufficiently well versed in this law to know his legislation is flawed, unworkable and probably unconstitutional as it stands. It will solve none of the major and substantive issues relating to foreign adoptions or the constitutional rights of those adopted children and their parents. While the legislation before us appears to meet the needs of the adoptive parents it fails to tackle the real issues.
One very important area addressed in the Bill was a matter of frustration for all those who tried to go to Romania and to adopt children there. That was the area of the home study or assessment visits. That aspect is dealt with in section 12, the provisions of which propose that health boards should undertake such assessments. Because of the difficulties encountered by adoptive parents to date, some regularisation of the current legal position is required, but I do not think it is necessary to pass legislation for that purpose. I welcome the Minister's announcement last week that arrangements are in hand to organise the assessment procedures obtaining in a more positive manner. That will meet an immediate need. I hope it will mean that those parents seeking to adopt foreign babies will not be left with the feeling that everybody is working against them in their efforts to adopt. That feeling was communicated to me very strongly in recent months, that health boards and adoption societies generally gave the impression they would block the efforts of people who wanted to go abroad to adopt children. I realise that health boards and adoption societies — perhaps because of shortage of manpower — were afraid of the legal implications, which fear was expressed by social workers. Nonetheless, I contend the whole issue could have been handled very much more sensitively. The impression was given to prospective adoptive parents that everybody was against them, nobody wanted them to adopt foreign babies. That was an unfortunate impression which I am glad is being addressed.
I should have asked your permission at the outset, a Leas-Cheann Comhairle, to share my time with Deputy Martin.
Is the House agreeable to the Deputy's request. Agreed.
Even the Minister's proposals with regard to the assessment procedures are fraught with certain danger. It is good that an agency or agencies be formally established to ascertain the acceptability or otherwise of parents to adopt foreign babies. If an agency refuses a prospective adoptive parent approval effectively, probably that will end that parent's chance of adopting in the future. The current arrangement with private reports being prepared by social workers probably is not the best method of undertaking the task. On balance it would be better to have some formal, legal arrangement in place. I welcome the announcement that such is to be established.
Our major concern in relation to the adoption of foreign children must be with regard to its long term implications. We must ensure that such children will face no long term legal or constitutional difficulties with regard to their status. We must endeavour to ensure that such children will enjoy full status as Irish citizens so that no challenge, legal or otherwise, can cast any doubt on that in the future. We must so ensure for the sake of both the adoptive parents and the children adopted.
Can one imagine the heartbreak involved if legislation passed by this House were found to be flawed or unconstitutional? Deputy McCartan made a very strong case in defence of its not being unconstitutional. The Minister will have sought and obtained the advice of the Attorney General. Indeed, the Minister outlined some dangers he foresaw last week. Once there is any doubt about the Bill before us being unconstitutional we must endeavour to overcome such doubts or difficulties. Imagine the heartbreak if, in ten or 12 years' time, one of these children had to be returned to Romania? How could any of us in this House face the adoptive parents of such a child?
Deputy McCartan gave me the impression that he was accusing the Minister of being awkward, of opposing the Bill just for the sake of opposition. I know that is not the case. We can all advance various points or arguments on the Bill before us. We can disagree about its legal or constitutional provisions but I do not think anybody should impugn anybody's motives, whether those of Deputy Shatter in proposing the Bill, the Minister in pointing out flaws or anybody else's. That should not happen here. I very much regret that that appeared to be the line followed by Deputy McCartan.
According to the Minister there is a constitutional difficulty involved in recognising a foreign adoption order relating to children who would be ineligible for adoption in Ireland; presumably that is the advice the Minister was given by the Attorney General. That question must be addressed by this House which, on my understanding, has not been addressed in the Bill as it stands. The Adoption Act, 1988, allowed the extension of eligibility of adoption to children whose parents, married or not, were deemed by the High Court to have failed in their constitutional duty to care for them. The High Court is the only authority that can authorise the making of an adoption order in relation to a child born within marriage. The High Court can make such an order when satisfied that the natural parents failed in their constitutional duty. As has been pointed out already, the conditions which must be met are set out in the Adoption Act, 1988. At that time that Bill was referred to the President of the Supreme Court under Article 26 of the Constitution. The Supreme Court emphasised that failure on the part of parents to care for their children — due to externally originating circumstances, such as poverty — would not constitute failure within the meaning of the Act. Therefore, it is open to question whether the court would accept that the conditions prevailing in Romania or elsewhere, in themselves, are sufficient grounds to justify the adoption of foreign children here under the 1988 Adoption Act.
We must also face up to the question — again dismissed by Deputy McCartan — whether we can or should accept lower standards for the adoption of foreign babies than those in place for the adoption of Irish children. For example, is it right, fair, legal or just that we should have certain standards for Irish children and lower standards when foreign babies are involved? If we apply lower standards to foreign adoptions, is it not then possible that people refused the right to adopt here — because they may have been in their forties, or were not in a recognised marriage — would challenge the adoption of some of these foreign children by another couple in similar circumstances? For example, could they claim they were being discriminated against? If they did, what would be the implications of such an action if successful? For those people who have gone to the trouble, expense and trauma of searching for, finding and adopting a baby in a foreign country, all these considerations must be taken on board and studied carefully. The best way to tease out all the implications of the provisions of the Bill before us would be through the establishment of a Committee of this House. In saying what I have, I hope I do not appear to be callous or indifferent to the general plight of those people who have adopted Romanian or other foreign babies.
My concern is that whatever we do we do it right, so that we can stand over it in the future. We should be able to have a law which protects these parents and the children.