The Growth of Privacy; Day 5 – The Invisible Normal

FEBRUARY 3, 2020

One of the hats I wear is that of notary.

Leonardo DaVinci’s father was a notary.

However, Leonardo was born out of wedlock and therefore was prevented for this reason at the time from following his father into that career.

In his case, that proved providential, as the circumstance of his birth meant that he subsequently went on to realise his potential in other ways and became for us one of the greatest artists and polymaths the world has ever known.

As opposed to becoming just another notary.

In my case, I’m afraid, I’ve had no such luck…

One of the areas that I encounter from time to time as a notary is foreign adoption; if a couple is seeking foreign adoption, there is a substantial amount of documentation to be completed and verified for the foreign source country that must be notarised. This is very commonplace in the practice of notaries here today.

But when I was growing up it was not; on the other hand when I was growing up adoption was extremely common.

Yet all of the children adopted were Irish.

I have first cousins who were adopted, we had many close family friends growing up whose kids were adopted, people I went to school and college with, it goes on and on. I wouldn’t call it a golden age of adoption, for reasons I will get to, but certainly, it was a very common, or normal, thing when I was growing up.

But no-one spoke about it.

Or, to be more precise, no-one spoke about why this was the case, the reasons why the adoption of Irish children was such a commonplace, everyday thing.

It was a phenomenon that was completely normal, the cause of which was completely invisible.

Of course, now we can see very clearly what it really was – adoption was seen by Irish society and establishment a very neat solution to two problems at the time: what was then described as “illegitimacy” on the one hand and infertility on the other.

The stigma associated with “illegitimacy” in Irish society was extraordinary; it really was visceral. It is hard to even conceive of it as a thing now, but it was a really big thing then. Such a big thing in fact that no-one spoke about it at all.

But while no-one spoke about it, an awful lot was done about it. In fact, two things that are among the greatest sources of national historical shame in Irish society are the circumstances that led to many unplanned pregnancies in Ireland in the past and the way in which the women who gave birth to those children and those children themselves were subsequently treated.

Unplanned pregnancy is one by-product of sexual abuse. You might be forgiven for thinking that sex and sexual abuse didn’t happen when I was growing up because no-one spoke about that either. But of course, that was the whole problem, from repression beforehand to suppression after the fact.

Of course, many women had unplanned pregnancies that were not the result of abuse, because despite what we might have been expected to believe, people were having sex in Ireland before the turn of this century.

Very many of these women, who found themselves pregnant outside of a traditional husband/wife-based family, were forced to, or felt themselves with little alternative but to, give up their children for adoption.

Many of these women were also subjected to years of horrendous abuse and forced labour in what has become known as Magdalene Institutions.

All of this meant that the adoption of Irish children by Irish families was extraordinarily ordinary when I was growing up.

Which means now, you have very many adults of my generation (just to be clear, I was not adopted and therefore do not claim any personal experience or knowledge here), some a bit younger, some a bit older, who may wish to find out about their birth parents and families, or indeed simply their own biological history and personal identity.

But when adoption was given a formal legal basis in Ireland in 1952 a firewall of secrecy was sought to be imposed to prevent adopted persons from going back to the source of their birth. Even something as simple and fundamental as their birth certificate was something that was inaccessible to them.

As time has gone on this position has improved, though at enormous cost to those who have had to fight for access to their records and to be allowed to find out about their pasts; many presumably gave up.

Whatever about the wrongs of the system in the past, in cases such as adoption we encounter the interaction of the rights of privacy and access to personal data between individuals.

On the one hand, you have the rights of birth parents to their identity, their personal data and their desire to remain anonymous, if that is what they choose.

And on the other hand, you have the right of an individual to find out about the essence of their being, their birth, who they are. It is hard to think of any data that could be more personal than that.

But the rights of individuals are not absolute, my rights do not trump yours. (Other than, perhaps, to me!)

It is an essential point to consider in any request for access to personal data, by providing access to the personal data to one person, is there any risk that you will infringe the data protection rights of another person?

Author

flor mccarthy

Flor McCarthy is one of Ireland’s leading lawyers and a recognised expert in marketing. He has particular expertise and hands-on practical experience in privacy, data protection and GDPR issues for marketers. He is certified by the Law Society of Ireland in Data Protection Practice and lectures lawyers on data protection practice and compliance. He is managing partner of a multi award winning niche legal practice. He has been in private practice for over 20 years and has been elected by his peers to sit on the exclusive Council of the Law Society of Ireland, the governing body for Irish lawyers.

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