Over-stated
“It is my considered view that these concerns are greatly overstated, and unlikely to manifest themselves in an actual court decision,” Dr O’Mahony writes in his report.
“From a constitutional perspective, there is no case law that supports the proposition that court-ordered DNA testing is only permissible in the context of the investigation and prosecution of criminal offences,” he adds.
Dr O’Mahony points out that the right to privacy must be balanced against the right of society to have criminal offences investigated and prosecuted.
“There is no reason to conclude that the protection of another constitutional right (namely, the right to identity) is any less important an objective,” the report continues.
No case law indicates that court-ordered DNA testing, as a last resort to attempt to restore the right to identity to a person subject to an illegal birth registration, would amount to a violation of the right to privacy, the report points out.
The Birth Information and Tracing Bill 2022, passed by the Oireachtas in June 2022, provides for access to birth and early-life information for those affected by illegal birth registration – including a right to request an expedited review of their files with a view to establishing their true identity.
Dr O’Mahony had previously said that adoption records currently in private hands should be acquired by the State and held in a centralised archive.
The Government has committed to a centralised archive of institutional records – including adoption records – and to a National Memorial and Records Centre.
Violated identity
The Special Rapporteur adds that the amendment recommended in his report of September 2021 is aimed at restoring the right to identity to persons subject to illegal birth registration, whose right to identity has been violated through a combination of the deliberate actions of third parties and the inaction of the State over a period of decades.
Falsified birth records allow no way to identify true parentage or other relatives, the report states.
Research on commercial DNA databases may narrow the field of possible relatives so that a DNA sample from one individual is likely to confirm the existence of a close blood relationship, thus unlocking the identity of a parent or parents, the report says.
“If the purported relative refuses to produce a DNA sample, the quest to reconstruct a falsified identity will be frustrated. Failing to enact the recommended amendment would amount to granting one private citizen an effective right of veto over another private citizen’s ability to vindicate his or her constitutional right,” Dr O’Mahony writes.
Such mandatory DNA tests should have a clear basis in law and include an additional safeguard in the form of judicial supervision, since a test could only take place following a court order, the report adds.
Prima facie evidence of a possible blood relationship between the parties should also be required.
Violated identity
“The proposal is the only way to uphold the constitutional right to identity of certain individuals whose birth records have been falsified,” Dr O’Mahony writes.
Citing the proportionality test set out by Costello J in Heaney V Ireland, Dr O’Mahony states that such a law would pursue an objective of sufficient importance — the vindication of the constitutional right to identity of a person for whom that right has been violated over a period of decades, in part due to failures by the State.
One party has a constitutional right to know their identity, and to have an inaccurate record of their identity corrected, whereas the other party does not have a constitutional right to privacy that extends to denying close blood relatives knowledge of their relationship, and exercising an effective veto over the vindication of the right to identity, Dr O’Mahony writes.
From a European law perspective, the judgment of the European Court of Human Rights in Mikulic v Croatia in 2002 underlined states’ obligations to ensure that people could establish their personal identity.
Prolonged uncertainty
In that case, the court found that there was a violation of article 8 of the ECHR, as the applicant was left “in a state of prolonged uncertainty as to her personal identity”, given that the putative father refused to undergo DNA tests for three and a half years, and the Croatian authorities had no way of enforcing this.
“This would suggest that in the context of illegal birth registrations in Ireland, the State not only has latitude to legislate for court-ordered DNA testing in this context, but has a positive obligation to do so,” the Special Rapporteur’s report concludes.