The legally sound administrative scheme will involve gardaí collecting DNA samples and storing them securely.
Time stress
This step will remove the time stress on relatives who fear their rights are being whittled away as they await a legislative framework that would enable permissions to exhume remains of babies buried at the Tuam site.
A legal source said the proposed scheme is a “completely new way of thinking”, in that it steps around the need for legislation in order to get something done.
Insiders believe that the move will be a “great step forward” for the survivors’ families who are ageing and seeing their chances of restorative justice ebbing away.
The Tuam Home Survivors’ Group has previously called for exhumation of all human remains at the site and for a DNA database of survivors and family members of survivors and those registered as dying at the home.
Expected legislation
Ahead of the enactment of expected legislation, Dr Shannon has said that it should be legally possible to develop a voluntary administrative scheme to collect biological samples for comparison purposes.
The biological samples will then be compared with the DNA from juvenile human remains found at the Tuam site, with the aim of making positive identifications.
After the legislation – currently being prepared by the Department of Children and Youth Affairs – is put in place, the administrative scheme will be subsumed into it.
Matching process
That legislation is expected to create a statutory mechanism for the collection, storage and processing of close relatives’ biological samples, in order to carry out a matching process.
The DNA samples will be collected on the basis of voluntary and informed consent, with an option to withdraw at all stages of the process. If a participant withdraws, their DNA information will then be destroyed.
Participants may also name a person to receive any information gleaned from the sample in the event of their death before the process concludes.
A data protection officer will also have oversight of the entire scheme.
Complex questions
Responding to the proposals, Minister Zappone thanked Dr Shannon for his “judicious and comprehensive assessment of the complex questions at hand”.
She said that given the urgency of the situation, she hoped to quickly move ahead with the proposed scheme.
Dr Shannon has cautioned that it is not yet clear whether or not it will be possible to generate high-quality DNA profiles from the juvenile human remains sufficient to yield conclusive familial matches.
The proposed scheme for the collection of genetic material must satisfy the requirements of both the Irish Constitution and the European Convention on Human Rights, Dr Shannon says in his 97-page report.
The measures must be “rationally justifiable and proportionate in light of the objectives pursued”, he said.
Respect for private and family life
He points out that while the DNA collection and matching process should ideally be underpinned by a robust statutory framework, the creation of an interim administrative scheme is both constitutionally permissible and ECHR-compliant.
The scheme will also vindicate the ECHR’s Article 8 right to respect for private and family life.
There is no suitable legislative basis for collecting the DNA of family members under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014.
Dr Shannon also insists that the lines of authority over the scheme, in terms of the departments or agencies involved, must be clearly communicated to relatives and the general public.
Legal sources have said that the proposed scheme could have a wider use in other situations, such as the Bessborough Mother and Baby Home, where the register shows that 470 babies and ten mothers died between 1934 and 1953