Adoptive Leave Bill, 1993: Second Stage.

Thursday, 11 November 1993

Seanad Éireann Debate
Vol. 138 No. 4

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Question proposed: “That the Bill be now read a Second Time.”

Minister for Equality and Law Reform (Mr. Taylor): Information on Mervyn Taylor  Zoom on Mervyn Taylor  The Adoptive Leave Bill, 1993, is the second Bill which I have had the pleasure of initiating in this House and I am pleased to commend it to the House this morning.

The Bill will give effect to the commitment of the Government to provide leave from work to adopting mothers. The Bill primarily envisages a ten week period of leave which is intended to be covered by a social welfare payment and an optional four weeks' additional leave which will not attract payment. This scheme is modelled on the existing arrangements for natural mothers. The Bill will apply in the case of both domestic and foreign adoptions.

The House will be aware also that the Bill gives effect to one of the recommendations of the Second Commission on the Status of Women. The Commission's report, specifically recommended that ten weeks' leave from work should be provided to adopting mothers. I know the House recently debated the Commission's report and the House will be aware that this is but one of a number [408] of initiatives which the Government is taking to implement the recommendations of the Commission.

The existing Maternity Protection of Employees Act, 1981, which came into force on 6 April 1981, provides in general for 14 weeks' leave from work for natural mothers with an extra entitlement to four weeks' maternity leave. The social welfare code provides for the payment of maternity benefit for the duration of the 14 weeks of maternity leave. These provisions are re-enacted in sections 37 to 41 of the Social Welfare (Consolidation) Bill, 1993. It was widely perceived as an anomaly, however, that women who adopted children were excluded from these arrangement, and this Bill redresses that anomaly. When enacted, this Bill will be accompanied by a change in the social welfare code to provide for payment of an adoptive benefit during the ten weeks of adoptive leave. I assure the House that this Bill is simply a first step in my examination of the entire area of reconciling work and family responsibilities.

Further measures will include a review of the Maternity Protection of Employees Act, 1981, which I am currently undertaking, with a view towards improving and updating the Act and giving effect to the EC Council Directive of 19 October 1992, on the introduction of measures to encourage improvement in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. The Directive is due for implementation on 19 October 1994, and I intend to have the necessary legislation in place by then.

I am conscious of the need for provision to be made for men as well as women to enjoy conditions of employment which enable them to reconcile work and family responsibilities. There is some provision for adoptive fathers in this Bill, in the case of sole male adopters and in other circumstances. However, it would have been inappropriate in a Bill such as this to have dealt extensively with the wider question of leave for fathers. It is worth emphasising in that connection that the Bill gives effect to what was [409] envisaged by the Second Commission on the Status of Women, namely that the provision of ten weeks' adoptive leave would be primarily geared towards women who adopt.

However, the broader questions relating to the involvement of both parents in domestic responsibilities are receiving attention in my Department, particularly in the context of the draft EC directive on parental leave and leave for family reasons which has been revived by the Belgian Presidency of the EC Council. The House will be aware that the Tánaiste and Minister for Foreign Affairs, Deputy Spring, recently made a commencement order bringing into force, with effect from 1 November 1993, the European Communities (Amendment) Act, 1992, which makes certain provisions of the Treaty on European Union, including the Protocol on Social Policy, part of Irish law. The entry into force of the Protocol on Social Policy will set a new context for the future development of EC legislative initiatives in this area.

I will now outline some of the main features of the Bill. Part I of the Bill contains preliminary and general provisions. I draw attention to section 4, which ensures that persons cannot contract out of their obligations or entitlements under the Bill but which allows for the provision of arrangements to an employee more favourable than those provided in the Bill. Part II of the Bill provides for the grant of adoptive leave. Section 6 provides for the grant to an adopting mother or to a sole male adopter of ten weeks' adoptive leave beginning on the day the child is placed for adoption. There is provision to allow for alteration of the length of leave by ministerial order. Similar provision is contained in existing maternity legislation.

Section 7 requires an employee who wishes to avail of the adoptive leave to inform her employer of her intention to take the leave and of the expected day of placement. The employee must give at least four weeks' written notice of taking the leave and furnish appropriate evidence of the placement. In line with existing [410] provisions on maternity leave, section 8 allows an employee to take up to four consecutive weeks of additional adoptive leave, immediately following the adoptive leave. Again, to qualify for the leave, the employee must notify her employer, in writing, of her intention to take the leave at least four weeks before the date on which she would have been due to return to work if she had not applied for additional adoptive leave. There is provision in the case of a foreign adoption, subject to certain notification requirements, for some or all of the period of additional adoptive leave to be taken before the day of placement. This provision is intended to facilitate the employee to travel abroad for the purpose of familiarisation with the child to be adopted.

Sections 9, 10 and 11 entitle an adopting father to leave where the adopting mother has died either after giving notice of the intention to take the leave, or at any time during adoptive leave or additional adoptive leave. In such circumstances, the legislation will entitle the adoptive father to the period, or remainder of the period, of leave to which the adopting mother would have been entitled if she had been alive. No such provision exists in relation to existing maternity leave, and I would be disposed to making a provision of this kind in the context of my general review of the 1981 Act which will be completed early next year.

Section 12 provides for the return to work of an adopting parent in circumstances where the placement of a child has been of less than 14 weeks' duration. In such circumstances, the adopting parent must inform her employer that the placement has terminated no later than the date of termination. The employer is obliged to give such an employee notice of at least one week of the day on which she is required to return to work. The employer must take her back, in any event, no later than the due date of expiry of adoptive leave or additional leave, as appropriate. Section 13 requires the agency placing the child for adoption, or the Adoption [411] Board in certain circumstances, to issue to the adopting parent a certificate of placement no later than seven days after a request for one by an adopting parent.

Part III of the Bill contains provisions relating to contracts of employment. Section 15 provides that an employee absent on adoptive leave will be treated as if she had not been absent so that all her rights, except the right to remuneration, will be unaffected during the leave. It also provides that employment before the absence on additional adoptive leave will be regarded as continuous with employment following such absence in respect of all rights, other than the right to remuneration which will stand suspended. Periods of probation, initial training and apprenticeship will be suspended during adoptive leave and additional adoptive leave.

Section 16 renders void any purported termination of or suspension from employment during adoptive leave or additional adoptive leave or any notice of suspension due to terminate during such leave. Section 17 provides for the extension of the date of any termination of or suspension from employment beyond the end of adoptive leave or additional adoptive leave.

Section 18 entitles an employee to return to work after adoptive leave and additional adoptive leave to the job she held and under the contract of employment current before the leave. The section also deals with arrangements for the return where there has been a change of ownership of the enterprise concerned. Section 19 provides for the offer of a new contract of employment to an employee in circumstances where it is not reasonably practicable for an employer, or the new owner, to allow the employee to return to her usual job. In such circumstances, the new contract must offer work which is suitable to the employee concerned and its terms must not be substantially less favourable than the old contract.

Section 20 requires an adopting parent to give to her employer, in the period of two to four weeks before the due date of [412] return to work, notice of her intention to return to work after the leave.

Section 21 allows for the postponement of the resumption of work by an employee in a situation where she is due to return to work on a date on which there is a general interruption or cessation of work at her employment.

Part IV of the Bill provides for the amendment or application of other social protection legislation so as to guarantee the rights of adoptive parents.

Under these provisions, the dismissal of an employee for reasons connected with the exercise of rights under the Bill will be deemed to be an unfair dismissal.

In addition, the failure by an employer to allow an employee, who is otherwise entitled to do so, to resume work after the adoptive leave or additional adoptive leave will be deemed to be an unfair dismissal (unless there are substantial grounds justifying it). The Bill also provides that the termination of the employment of an employee, engaged to replace an adopting parent during adoptive leave or additional adoptive leave, when the adopting parent returns to work, will be outside the scope of unfair dismissals legislation.

There are also amendments to the redundancy payments and minimum notice legislation to protect the rights of workers on adoptive leave.

Part V of the Bill establishes redress procedures in the event of a dispute relating to entitlement under the Bill between an adopting parent and her employer. A dispute relating to dismissal will be dealt with under the Unfair Dismissals Act, 1977 as amended by Part IV of the Bill. The main features of the redress procedures in cases other than dismissals are a right of redress in the first instance to a rights commissioner, followed by a right of appeal to the Employment Appeals Tribunal on the facts and to the High Court on a point of law. Provision is made for compensation of up to 20 weeks' remuneration.

I look forward to a constructive debate on this measure in the House and I wish to assure the House that, subject to and consistent with the general aims of the [413] Bill, I will be prepared to give sympathetic consideration to all constructive suggestions for amendments. I commend the Bill to the House.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I welcome the Bill and congratulate the Minister on introducing it in the Seanad. The Bill is being introduced 12 years after the Maternity (Protection of Employees) Act, 1981. I fail to understand why the provisions of this Bill were not incorporated in the 1981 Act at the time. It makes a statement on the attitude of the State to adoption. State agencies have never fully accepted the spirit of equality of adoptive parents in comparison to natural parents, and I congratulate the Minister on redressing this today in initiating this Bill in the House.

I am pleased to hear that the Minister will be initiating further legislation to introduce recommendations outlined in the report of Second Commission on the Status of Women. The Women's Rights Committee is at present prioritising those recommendations and will have completed its work within weeks. I hope the Minister will look at its recommendations as they affect his Department.

In the 1960s, some 1,650 adoptions were placed annually. This figure has progressively decreased and is now between 200 and 300 per annum. The figure is still falling. The figures I mentioned include inter-family adoptions, so the true figure for adoptions involving adoptive parents and children without a blood relationship is much lower than I have outlined.

On the face of it, the Bill introduces similar entitlements for adoptive parents to those already existing for natural parents. I believe, however, that the operation of the Bill will create problems. There are about 16 adoption societies in Ireland including those under the auspices of the health boards. The majority of these societies put pressure on adoptive mothers not to work outside the home. While one will not find this in any written policy of the adoption societies, in practice this approach is strongly promoted and many women do give up work to enhance their chances of adopting a child. The only profession excepted from [414] this approach by the societies is that of a teacher who is also a mother, the theory being that a teacher continues her presence with the child while at work. This approach by the societies makes a mockery of the Bill.

I suggest that the Minister should look at the situation of adoptive parents and the type of people who become adoptive parents over a period of a year to examine the correlation between the number of mothers who remain at home at adoption time and the number who are working. These figures should be compared to the applications, if the Minister can obtain that figure, to see if there is discrimination by adoption societies against women who work.

There has been a substantial improvement in conditions of work for women since the former Fine Gael-Labour Coalition Government introduced a comprehensive range of labour legislation in the 1970s. This Bill is one of many needed to ensure that all sections of the community have fair and equal rights in the workplace. There is no doubt that the omission of this legislation to date has perpetrated an injustice against adoptive parents, especially adoptive mothers. My main criticism of the Government would be over the delay in introducing the legislation. The right of women, while adopting children, to have their jobs protected would be widely considered today to be a basic social and human right. I and my party are strongly of this view.

I would like to deal briefly with the area of adoption procedure. The present situation is that the societies operate in privacy. The criteria for placing adoptions is not transparent and the decision making process of the societies is not open to scrutiny. It is healthy that this process which affects vulnerable children, and parents who are anxious to love and provide for them, should be open and transparent.

The adoption societies are the sole arbiters as to whom they place a child with. It is apparent that at present the adoption societies are not accepting names from the general public. Has the Minister information on the procedure [415] for placing one's name on a potential adoptive parents' list? At least once a year, each adoption society should be open to public applications and should advertise as such. This should remove the secrecy that surrounds the whole area of placement. I have no doubt that adoption societies do an excellent job but it is important that they are also seen to be doing so. It is in their interest to be more open and transparent in their decision making.

I would like to raise the question of the upper age limit for adoptive parents. There is no consistency in the approach of the adoption societies. Many adoption societies have an upper age limit of 35 years for the father and 32 years for the mother. This is too rigid and discriminates against parents in their late 30s and 40s. In fact, the British Adoption Society's recent recommendations suggest that adoptions should be allowed well into the 40s. One accepts that there should be an upper age limit but it should be more in line with the age range of natural parents. I see no reason this should not be so. Surely a father in his early 40s and a mother in her mid-30s are capable of being excellent parents for an adopted child. If not, then there are a lot of natural parents whose ages do not comply with the adoption societies' age criteria for rearing children.

I am aware of one recent case where an adoptive father of 54 years of age was granted an adoption. The reason for this was that the child had Down's Syndrome. I raise this point to illustrate the inconsistency and anomalies in the age criteria.

In general all adoption societies seek mothers in their early 30s and fathers not older than their mid-30s. It is inherently unfair there is no system of appeal for a potential parent where an adoption has been refused or where a society fails to give a decision. Some objective system should be available to such parents. An office of adoption ombudsman should be considered by the Government to redress the situation.

[416] Foreign adoptions have been facilitated by the foresight of Deputy Shatter who introduced the Adoption Act, 1991, to cater for adoptions effected outside the State by Irish residents. The objective of this Bill, which is to facilitate foreign adoptions, is being frustrated. It is the view of the Adoptive Parents' Association that there is a general feeling — to date adoptions have been to a large extent from Romania — that children should not be taken out of their ethnic environment. This is the general view of the adoption societies.

All who have seen on television the atrocious conditions in which children exist in orphanages, and the life they face, must surely accept that life in this country, in a caring and loving family, is much more beneficial than their present circumstances or future prospects. I fail to understand how anybody could suggest conditions and experience in Ireland are not far better than they could expect from their future in Romania. I know a family who have adopted a Romainan child. One can only be impressed by the joy she has brought to that family and the great love she is experiencing from her adoptive parents.

At the last meeting of the Mid-Western Health Board I asked the Chief Executive Officer for a report on the number of couples and individuals who applied to the board for assessment for foreign adoptions under the Adoption Acts and the number of completed assessments forwarded to the Adoption Board. There have been 80 applications for adoption since 1991, yet only four assessments have been completed. This is an indication of the unnecessary delay, not only in the Mid-Western Health Board, but throughout Ireland, as outlined in a reply by the Minister for Health to a recent Dáil question by Deputy Shatter.

There has been a debate on the right of adopted children to be informed of the name of their natural mother. It is the right of everybody to know their origin. A contact register should be available to enable people to obtain this information. Everybody should have the right to obtain their original birth certificate. If [417] an adopted child knows the name of his or her natural mother and birthplace he or she has no difficulty in obtaining a birth certificate. Nobody has difficulty in obtaining a birth certificate for such a person. If, however, they do not know this, they cannot obtain the original one. This is discriminatory against one section of adopted children. The contact register should be available and the natural mother should be contacted to note on the register whether she wishes to have contact with her natural child.

The State should provide a counselling service in this area to ensure that any personal difficulties which may arise can be dealt with. The present situation, where natural mothers or adopted children are paying astronomical sums to private detectives to obtain such information, is totally unacceptable and unfair and should be eliminated. The present situation, where the birth certificate of an adopted child outlines the country of birth and not the county of birth, has created difficulties for many adopted children. For example, adopted children are immediately turned down for US visas if they cannot disclose their place of birth. Surely it is the duty of the Government to eliminate these anomalies and ensure that adopted children have equal treatment to natural children in these areas.

It is important that the Government examines the succession rights of adopted children. Adopted children and their parents were shocked to discover in August 1992 that two adopted girls were, because of their status, unable to inherit their father's farm following a decision of the High Court. In the case taken by a County Wexford farmer, Patrick Stamp, his father's will provided for the property to be left to a grandson if Mr. Stamp died without leaving issue. Following his father's death he adopted two children. The use of the word “issue” in the will was deemed to exclude them from the inheritance since they are not regarded in law as their father's issue. It is in this precise wording the difficulty lies.

Under the Adoption Acts any property of a person who dies intestate passes to the adopted child as it would to a child [418] born to that person. In any will a reference to a child, whether expressed or implied, is construed to include the adopted child. Similarly, following the Adoption Act, 1976, any Act of the Oireachtas which referred to a child is interpreted as including an adopted child unless there is an intention to the contrary. The Status of Children Act, 1987, ensured that a reference to a child in a will is to be interpreted as including a child adopted subsequent to the will. The peace of mind engendered for adopted children and their parents by this legislative background and the clear legislative intent that all children should be regarded equally in law was distrubed by the decision of the High Court in the 1992 Stamp case. Are there other such cases and might legislation be appropriate to prevent a recurrence? The Government should introduce such legislation.

The Adoption Board warned adoptive parents to seek legal advice when making a will and, on adopting a child, to take advice about any pre-existing wills from which the child might benefit. Nearly 40,000 children have been adopted in the last 30 years. It is possible many of them might be affected by this or other wordings in wills which were not envisaged under the Adoption Acts. There is a strong body of legal opinion which believes legislative change is necessary to prevent a recurrence of a case similar to the Wexford one. I ask the Minister and the Government — it may be the responsibility of the Minister for Justice — to initiate legislation to tidy up this area to ensure that adopted children are fully protected regarding succession to their parents' property. Approximately 40,000 children have been adopted in the past 30 years. The system of adoption has removed the responsibility of the State to cater for many children who have been adopted.

I now refer to legal costs which may arise in adoptive cases. Where a court case ensues with regard to final consent of the natural mother, the onus should be on the Adoption Board, not on the adoptive parents, to sort out the difficulties. The High Court, under section [419] 3 of the Adoption Act, 1974, has the power to decide the final outcome of the adoption but the adoptive parents or the natural mother must initiate this action. This should be completed by the Adoption Board. Under the Child Care Act, 1988, the costs of legal proceedings ensuing from adoption completed by health boards are paid for in full. The adoptive parents concerned are not responsible for any of the costs under such circumstances. Having two sets of criteria is discriminatory. We have two types of parents, one under the original Adoption Acts and the second under the Child Care Act, 1988, and both are treated separately for cost purposes by the court. I believe the Government should harmonise these and place th onus on the Adoption Board for difficulties arising for adoptive parents who are not included under the provisions of the 1988 Act.

Section 7 of the Bill, which states that a person is given:

In the case of an adoption other than a foreign adoption, entitlement to the minimum period of adoptive leave... having, as soon as is reasonably practicable but not later than four weeks before the expected day of placement, caused her employer to be notified in writing of her intention to take the adoptive leave.

In other words, an employee must give four weeks' notice of her intention to take adoptive leave. I would like to ask the Minister if he has discussed this section with the adoption societies.

The practice heretofore has been to give much less than four weeks' notice to a prospective parent of an adoption. It has not been unknown in certain cases for just several days notice to be given of an adoption. I am concerned that this will introduce a further discriminatory angle to the procedure if the adoption societies are not fully prepared to accept the spirit of the Bill. I would like the Minister to outline the outcome of any discussions which he has had on the Bill with the adoption societies.

[420] I welcome the Bill and congratulate the Minister on bringing it in. It harmonises the position of natural and adoptive parents. I believe that it should have been done in 1991, but better late than never. I commend the Minister for so doing.

Mrs. McGennis: Information on Marian McGennis  Zoom on Marian McGennis  I want to thank the Minister for initiating this Bill in the Seanad. I welcome this Bill in which I have a personal interest, as I was extraordinarily lucky and blessed to have been adopted by two wonderful parents. I am particularly glad to be a Member of the Oireachtas when this legislation is being initiated in the Seanad.

The need for this legislation is so glaringly obvious that, as Senator Neville said, it is a wonder it was not introduced before now. It seemed to form part of written and unwritten regulations that when a couple applied to adopt, there was a semi commitment required or a demand made that the woman would not work. This was discriminatory. My mother worked much of the time when I was growing up but she did not work during the time of the adoption. I welcome the fact that this legislation will mean that women who are working and want to adopt will not find themselves at a disadvantage.

I know the legislation refers specifically to adoptive leave for women, but in my circumstances my father was in the Army, so both parents could have been working. The Minister will find that where both parents are working, it may be necessary to be flexible and allow time off to both parents. That probably is a minefield but it may be necessary to consider it.

To suggest that parents who adopt children and children themselves do not need that bonding which all children and parents need is ludicrous. A mother who had adopted would probably need more bonding than in the case of a natural mother. I am loath to use the term “natural mother”. I am equally loath to use the term “biological mother” because it carries a suggestion of being less than warm towards the mother who brought [421] the baby into the world. However, there is no doubt in my mind that there is a huge need for a mother, father and adopted baby to spend time together and for that bonding to take place. In the past, if the mother was working, I have no doubt that they made the choice for the mother to give up her job to stay at home with the child.

On a more practical note, if my mother was still alive she could confirm that I did not cry any less at night than my three natural children did. An adoptive mother who is working would be faced with the same sleepless nights, teething, wind pains and all the wonderful experiences and traumas which go with child rearing as a natural mother would. If they decided to continue working, they might find themselves with two and a half hours sleep, perhaps with a baby in the bed, as often happened to me with my children, and still have to go to work. They might have to work out of economic necessity and not necessarily out of career choice.

The other obvious need for this legislation is in the case of foreign adoptions. It must be almost impossible for families who adopt children from abroad to make those numerous trips to Bosnia or other countries. It must take years out of their lives to go through this procedure. I welcome this legislation particularly for those people. I have no personal experience of foreign adoptions aside from what I have read in the newspapers and seen on television. It certainly would not be possible to do it by making phone calls over a period of a week. It would take numerous visits and much time to be successful in adopting a baby.

I want to cover some of the areas which Senator Neville raised. It may not be the responsibility of this Minister, but I agree with Senator Neville that there is discrimination attaching to adoptive children and families as distinct from normal family situations. On a lighter note, a close friend's mother was insulted by the suggestion that her youngest child might have been adopted because she had red hair and the other five children were dark. They meant that there was a [422] suggestion that this was not their real child but something less than that.

Senator Neville touched on the problems faced by people who attempt to search for their natural mother. I recognise that we should never do anything which would put at risk the absolute right of privacy or confidentiality of a natural mother. Any legislation in that area must start from that premise. As Senator Neville said, there is a huge problem for those who attempt that search, the most obvious aspect of which is access to records, in particular one's birth certificate.

All adoptees have, as I do, the extract from the adoptees' register. I did not know that might cause a problem in relation to visas. I had no problem getting a visa for the United States but perhaps that was because I was married when I applied for one. The register of adoptees is a separate register and is the document which is furnished to adopted people who seek their birth certificate. If there is some way of guarding the confidentiality but still allowing access to one's natural birth certificate, it seems discriminatory and wrong that people would not have their natural birth certificate. There was a woman on the “Pat Kenny Show” two days ago who found out that she had been abandoned. She does not know what day she was born on and does not have a natural birth certificate. That must leave a huge void in somebody's life.

I know there is a problem in that sometimes the mothers may have put their home address on the certificate and obviously access to this information could give direct information to tracing a parent. That is not the best way for things to be done. I support Senator Neville's call for some sort of a register. Barnardo's are very active in bringing together parents and adults who search for their natural mother. However, this is all voluntary and ad hoc and can, perhaps, be done in not the best way, although Barnardo's have a great record.

When I wanted to trace my natural mother, I went to the institution from which I had been adopted which was operated by a group of sisters. The reaction [423] of the sister there was that I really should not do it and that I should rethink the matter. They were not supportive. I do not mean the nun was obstructive but she probably felt it was not the best thing for me. She was an older nun and her experiences would perhaps have been different from other agencies.

I went along this road and I did it myself. It is not an easy thing to do and that is why the relevant Minister must examine this area. It is becoming more and more a topic for discussion. The Magdalen laundries, the exhumation of those girls and their being reinterrment in the plot in Glasnevin is something I found distasteful. That is another story but it has brought the subject out in the open.

Much of the social legislation discussed here and in the other House recently had previously been brushed under the carpet. We had a very frank discussion on the Kilkenny case. Incest, sexual abuse and other issues had been hushed up. There was a climate in Ireland where adoptees and adoption was another topic not discussed. One did not talk to people about it and that is unhealthy, it may be why I am standing here discussing it. I ask the Minister to seriously look at this area and influence it in whatever way he can. We need to put structures in place to tidy up what can be a very problematic area.

I share some of Senator Neville's worry in regard to families where adoptions fell through and they were later informed, literally with 24 hours' notice, that a baby was available for placement with them. The Minister may need to look at the section which requires that the employer be given four weeks' notice. It may not be possible to give that much notice but I am sure that an employer would be sympathetic and flexible. If we are to enshrine the rights in law, we may need to amend that. The Minister said he is amenable to any suggestions or modifications to the Bill which will improve it. I ask him to advise us as to the reasons for the time scale.

[424] I have no criticism of the delay by Deputy Taylor in bringing this legislation to the House. The Minister is nine months in office, the length of a pregnancy preceeding the birth of a healthy baby. It is unfair and a little harsh on the Minister to be critical of the fact that legislation has not been brought to this House before now. He has gone through gestation and delivered legislation which is healthy and will work well.

This legislation is important in its own right but also because it recognises an inequality to which Senator Neville referred. More significantly, it sends out a message to society and especially to adoptive parents and their children, that the State recognises them as a family unit and the same as all other families, not a minority grouping who have to be dealt with separately.

I would like to give a personal message to those who have given up their children for adoption. Theirs was a great sacrifice and the State will not be found wanting in treating all children equally.

Ms Kelly: Information on Mary Kelly  Zoom on Mary Kelly  I thank the Minister for initiating the Bill in this House. I praise Senator McGennis for her contribution, which was very brave and courageous.

This Bill is, as Senator Neville pointed out, long overdue. The fact that it has taken 12 years is an indication of society and the attitudes that prevailed a decade ago. We should not blame the Minister of nine months for his failure to move any faster to right a wrong perpetuated for decades. To continue the imagery, I hope that we will adopt this Bill in this House and make it our own.

The Bill recognises the importance of the role of adoptive parents. One of the reasons adoptive parents were omitted from the 1981 Act may have been that maternity leave was originally seen in terms of the mother's physical condition. It was felt that a mother could not physically go back to work. The health of the mother was the primary concern and that is why there is a pre-natal as well as a post-natal need for leave.

Modern psychology and thinking has recognised the need for parents to bond [425] with their children. This has led more and more to an awareness of the need for parents to spend a great deal of time with young babies and children to develop that relationship. Adoptive parents need more time than natural parents because natural parents have been building up to the birth of their child.

I know, as a mother, of the expectation one experiences. As the baby grows in the womb so does one's affinity with the baby. The baby is a person from about the fifth month and some mothers talk to their growing babies. This relationship is built up in the months prior to the birth and continued after the birth.

The natural mother has an advantage over an adoptive mother. It is, therefore, correct to provide for ten weeks' leave to enable an adoptive mother to become familiar with the child, watch the child grow and be with him or her in those crucial months. One advantage a natural mother has over an adoptive mother is the ability of most women to breast feed their own children which brings a closeness which is not always possible when one is bottle feeding a baby. Therefore, an adoptive mother has to work harder than a natural mother.

It is right that we allow time to women who have brought babies into their homes. As pointed out, this can often be at very short notice. It is not always possible to have four weeks' notice that one is about to receive a child into one's home and prepare for it. Adoptive parents get very short notice and have to be mentally prepared, particularly if they are adopting for the first time.

As any parent will verify, it becomes easier with experience. However, for a person adopting for the first time, to be suddenly told with three or four days' notice that they will have a baby in their house at the end of the week can be a major shock to the system. Everything must be arranged, including practical tasks, such as buying a cot and other equipment. Natural parents have months to make such preparations. Adoptive parents do not have the same luxury and move straight into caring for the needs of babies.

[426] The Minister recognises that there is a need for fathers — natural or adoptive — to become more involved in parenting their children. I welcome his commitment to look at this issue in the future. I strongly believe that if fathers bond with their children and take care of them from the earliest moments the relationship is stronger for that bonding. If that relationship is not there from the start it can lead to problems in the future. Many of the problems of incest and child abuse are caused by the fact that fathers do not relate to their children. If someone loves and cares for a child it is much more difficult to abuse that child. However, if the child is seen as an object, not one's responsibility and not as someone close, it is easier to treat the child as an object. For too long in Ireland we have seen fathers distancing themselves from the caring role. Encouraging fathers to become more caring and responsible for the day to day care of their children will force them to become less violent. We could see a change in society if caring is recognised not just as a female attribute but as a human attribute. It should be encouraged in males as well as in females.

I agree with Senator Neville's criticisms of the existing rules and procedures for adoption and, for example, the pressure on mothers not to work outside the home. Some mothers from the lower socio-economic groups often find it difficult to adopt a child because they cannot offer the child the same material comforts as a better off family. Material comforts are not everything; love and caring really make the difference between a successful happy childhood and a not so successful childhood. I have known cases where children were adopted into relatively well off homes but the caring was not there. There was always a barrier and these children could have been better off if they had been given more caring than luxuries.

The idea that a woman of over 40 years of age cannot adopt a child is rubbish. There is no law which says that a woman cannot have a child after 40 and if a [427] woman can have a natural child after that age——

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  After 32 years sometimes.

Ms Kelly: Information on Mary Kelly  Zoom on Mary Kelly  That is even crazier because a woman can have a natural child up to her mid-forties. If a woman can have a natural child and is capable of looking after it she is certainly capable of looking after an adoptive child. It is as if one suddenly becomes a geriatric at 33 or 34, infirm of limb and wind and incapable of rearing a child. Many of us would not be here if the same rule applied to women over 40 giving birth to natural children.

Like the Senators who spoke earlier, I query the need for four weeks' notice prior to taking adoptive leave. From the employer's point of view I understand that some time is necessary to second an employee to take over the adoptive mother's workload. In some job categories four weeks' notice is necessary. However, if a teacher falls ill there are teachers' centres throughout the country which have lists of substitute teachers and the school can secure such a teacher in a matter of hours. If that can be done in the teaching profession I am sure a similar system could be put in place for other professions.

One of the criticisms of the existing maternity leave provisions is that often another person is not employed to fill in for the woman on maternity leave. The workload is often transferred to her coworkers and this can lead to friction in the workplace. At present there is no obligation to employ somebody to do the work of a person on maternity leave. I hope the Minister will look at that issue when he is revising the law as there should be a provision whereby fellow workers of a pregnant woman are not disadvantaged as a result of her being granted maternity leave.

I am glad this Bill includes provisions for foreign adoption and the needs of parents who decide to take children from a different country and culture into their homes. Their need for time is perhaps greater than the need of a couple adopting [428] an Irish child. I would not like to see too many children being taken from their native country and brought up in a different culture and climate although when one sees the terrible conditions in places like Romania, Bosnia and Serbia in which children have to live one can only feel great sympathy for them. I admire the parents who adopted them. However, when the countries in which these atrocities have taken place eventually become more humanised and, as occurred in Ireland, the number of children available for adoption is reduced I hope the children will be adopted in their own homeland.

Children need to grow up with their own cultural identity. From that point of view, traveller children who are put up for adoption in Ireland — the number is small — should, where possible, be adopted by members of the travelling community. Otherwise, it can lead to split cultural personalities, I am not criticising parents who have adopted foreign children, but each child is entitled to be brought up in its homeland. In America people go to South America and bring back children to feed the demand of rich Americans for adoptive children. The export of live children from places like South America is becoming a trade. As many American adoptive parents are white, the demand is for lighter skinned children. A balance must be struck between the good and absolute need of people to love and to be loved and this trade in children. I would not like to see such a trade in Europe.

I also ask the Minister to examine the rights of foster parents and the whole concept of fostering which usually takes place at a later age than adoption. Parents who take in foster children should have a right to parental leave, not 10 weeks, but a couple of days, to bring the foster child into the home, spend the day with the child and look after him or her while settling in.

Will section 9 of this Bill allow a natural father to adopt his own children on the death of the mother? I am thinking of a situation where the father and mother are not married but may be cohabiting.

[429] I thank the Minister for initiating this Bill in this House, it brings us one step closer to true equality. Some day we will have a situation where all the children of this country are treated equally.

Mr. Kelleher: Information on Billy Kelleher  Zoom on Billy Kelleher  I welcome the Minister and thank him for initiating this Bill in the Seanad. As a member of the women's rights committee, it is nice to see action on the recommendations of the Second Commission on the Status of Women and that it is not simply gathering dust.

This legislation is very important because, for far too long, adoption and the vetting of prospective adoptive parents was a taboo subject. There is too much discrimination by adoption agencies in regard to people who would like to adopt children, sometimes on the basis of socio-economic background. People who would genuinely be good parents often do not meet the criteria because of the stringent regulations laid down. I ask the Minister to look at the age limit for people who wish to adopt. It is an insult to anybody over the age of 32, 35 in the case of a male, that they would not be allowed to adopt a child. This issue must be addressed immediately because the more regulations we have the more we send out the message that there is something wrong with being adopted. Some of my peers in secondary school were adopted and they had a rough time.

This and other legislation which the Minister plans to bring forward will remove that stigma and taboo. I do not have much to say on this subject because the Bill is excellent, it provides for equality between natural and adoptive parents.

On the issue of foreign adoptions, having looked at television and having been in foreign countries where atrocities were committed, while a child has a right to live in his own country, if that country cannot provide for its children, I see no reason they cannot be adopted and brought to live in an environment which will cherish them and provide them with an education and the basic standard of living to which any child is entitled. I would deeply appreciate if all the criteria [430] that must be met to adopt a child could be examined, including the criteria of age and socio-economic background. I compliment the Minister again and thank him for initiating the Bill in this House.

Minister for Equality and Law Reform (Mr. Taylor): Information on Mervyn Taylor  Zoom on Mervyn Taylor  I thank all the Senators who contributed to the debate for their very constructive contributions, I wish to pay particular tribute to Senator McGennis for her excellent speech which I am sure moved everybody who heard it. We should all express our appreciation to her for giving such a personal, interesting and moving note to the proceedings here this morning. She did a very brave thing and we should all express our gratitude to her.

I am sorry about the delay in bringing this Bill forward but I take no personal responsibility for that. As Senator Neville and other Senators said, it should have been brought forward a long time ago. Queries about it were raised in the Dáil on many occasions but I am pleased that we have managed to finalise the Bill within a relatively short period of operation of this Government and bring it before the House this morning.

There were references to many matters which do not fall within the ambit of the Bill but which are referable to the issue of adoption generally. Some Senators raised the question generally of secrecy in many adoption societies and the fact that they do not operate with the degree of transparency desirable in their methods of operation, how they carry out their investigations and reach their decisions, the fact that they do not give reasons for their decisions and that there is no appeal procedure against them. These are all important issues although they do not come within the ambit of my Department or of this Bill. They are matters primarily for the Minister for Health and the adoption board. I assure Senators that I will refer comments by Senators on these issues to my colleague, the Minister for Health, and ask him to investigate the various points in regard to adoption procedures.

I support the view that the procedures should be as transparent as possible [431] having regard to the sensitivity of the whole adoption procedure. A message of supervision and control should be sent to the agencies and a good balance achieved. I include in that the question of the right of the adoptive child to know the identity of the natural parents. The point was made by Senator Neville and others that there should be a contact register and these are matters I will certainly raise with the Minister for Health.

The question of upper age limits for adoption was referred to by all the Senators who spoke this morning. It does not come within the ambit of the Bill, but as far as I know, there is no legal official age limit which would be discriminatory and not acceptable to me as Minister for Equality and Law Reform. What may happen in practice is quite a different matter and it appears from what has been said here that some adoption societies operate their own discriminatory rules in so far as age is concerned. That is something which will have to be looked at. I am working on legislation that will have an anti-age discrimination provision. In various contexts it is inappropriate that age should be used as a basis for denying people who wish to adopt a child. It is not a position that Senators would regard as acceptable.

Senator Neville referred to succession rights and to the Wexford case in particular. I will look at that to see what amending legislation may be necessary. The case was exceptional in the sense that it hinged on the word “issue” as distinct from the word “child” which would be covered by the existing legislation. The word “issue” was not covered and the court apparently interpreted the word “issue” to mean that it would have to be a naturally born child and that would exclude an adoptive child. The case was exceptional, nonetheless cases could arise where other words might be used and some clarification may be necessary.

However, there was a reference to the advice given by adoption societies to adopting parents that they should check their wills when they adopted a child. [432] That is good advice. I urge adopting parents or those who have adopted in the past to check their wills and make sure their wishes are clearly stated and represent their intentions to avoid any unfortunate difficulties such as arose from the Wexford case which, in all probability, were not the intentions of the testator.

Senator Kelly, Senator McGennis and Senator Kelleher raised the question of the period of notice to be given to an employer before adoption. I appreciate the points that there could be cases when an adopting parent would be informed on short notice that they had been approved for an adoption and that there would be a placement within a relatively short period. I will reconsider that on Committee Stage. One has to strike a balance between the needs of the adopting mother and the employer. The employer's position also has to be taken into account. An adopting mother could be holding down a crucial and important position at work and her sudden absence without reasonable notice could throw the workplace into chaos and possibly put at risk other people's jobs.

Notification and communication between adopting mothers and employers are all important. The overwhelming majority of employers would be understanding and sympathetic to any adopting mother in this situation. Substitute teachers and nurses might be obtainable at relatively short notice but in some cases a replacement might not be on hand quickly or easily and the downstream consequences for a business could be serious. I take the point and I will consider it in the context of Committee Stage.

Senator Kelly referred to the question of the rights of foster parents, fostering and whether some leave should be considered in that context. I will consider that. It covers a wide spectrum of situations and I will have to look at the age groups involved and the circumstances and see whether leave may be appropriate in the case of fostering. The Senator also raised the issue of whether section 9 would give rights to a natural father to adopt his own child in the event [433] of the death of the mother of the child. This Bill is not concerned with adoption rights, it is confined to and concerned solely with the issue of leave for an adopting mother and, in some circumstances, for an adopting father. The details of the adoption is dealt with by other legislation and would not be involved in this Bill. The context of the adopting father is confined to the question of leave.

Senator Kelleher raised the question of discrimination and I support his view that we must do all we can to ensure that there is no discrimination against adopted children or adopting parents. That should not be tolerated in any circumstances. I thank all the Senators for their excellent and constructive contributions and I look forward to Committee Stage when we can tease out many of the matters raised this morning.

Question put and agreed to.

Committee Stage ordered for Wednesday, 24 November 1993.

Sitting suspended at 12 noon and resumed at 2 p.m.


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