Thursday 23 January 2020

Some Comments on the General Scheme of a "Certain Institutional Burials (Authorised Interventions) Bill 2019"

On 10th Dec 2019, Minister Kathrine Zappone published some proposed legislation in relation to the excavation, identification and re-interment of the 800 or so children that could be buried in the disused pit on the site of the former Mothers & Babies Home in Tuam. There are several interesting aspects to this proposed legislation:
  1. the identification programme is only open to members of the public who believe that they may be the parent, child, sibling or half-sibling of the deceased children and can prove that they have reasonable grounds to believe so
  2. it does not apply to burial sites where the last burial occurred before 1950
  3. there is no mention of genetic genealogy within the proposed legislation
  4. members of the public can make Submissions regarding the proposed law by Friday 24th Jan 2020 (tomorrow).
I'll address these key issues below, but for those of you who may not be familiar with the story, here is a brief summary:
  • In 2013, a local historian (Catherine Corless) broke the news that there may be up to 800 children buried in a disused sewage pit on the site of the former Mothers & Babies Home in Tuam, Co. Galway.
  • She had found death records for 796 children but burial records for only 2 of them. This raised the question: where were the rest of the children buried?
  • It had been known locally since the 1970s that there were skeletal remains of children in a pit that had been on the site of the Home - could this be where some or all of them were buried? or was it possible that some death records were fake and that some of the "dead" children had in fact been trafficked or sold to childless American couples.
  • In 2017, a Commission of Inquiry confirmed that there were skeletal remains in the pit. The Minister committed to bring forth legislation to allow for the excavation of the site and the identification of the children therein. The proposed legislation was published on 10th Dec 2019.
  • There was a higher death rate in the Tuam Home compared to other similar institutions and there have been calls for further investigation and the possibility of criminal negligence has been raised.

The proposed legislation is 89 pages in length and not too difficult to read. It allows for an "Agency" to be set up to supervise the excavation, exhumation, identification, and re-interment of any human remains found on the sites of former Mother & Baby Homes (including that at Tuam). The criteria for intervention include "manifestly inappropriate" burials that "would not reasonably be considered to be a dignified interment" and which are buried "in a manner or in a location that is repugnant to common decency".

Interestingly, the new law does not cover mass grave sites where the last burial was prior to 1950 ...

This could have implications for any Mother & Baby Homes that closed their doors prior to 1950. These Homes would not be subject to the proposed law and therefore no legal route for excavations at these Homes would exist. They would remain in legal limbo.

The sections of particular relevance to genetic genealogy are mainly in Part 6: Provision for Identification of Deceased Persons (from page 60 onwards). Whilst genetic genealogy is not specifically mentioned in the proposed legislation, neither is it ruled out. In fact, there may even be provision for it within the wording of the current text which states that one of the functions of the Agency could include ...

Part 6 refers to "familial matching" which is a term usually used in reference to standard forensic autosomal STR analysis. There is no specific inclusion of genetic genealogy. Similarly it is not specifically excluded. And in addition, the wording says that it "includes" comparison for familial matching, implying that other methods might also be used. 

The legislation allows for the establishment of a "DNA (Historic Remains) Database" by Forensic Science Ireland (FSI, the Irish government's forensic lab). The database consists of 4 types of DNA profile:
  1. DNA from the unidentified human remains (e.g. those in the pit at Tuam)
  2. DNA from permitted family members
  3. DNA from two groups of people ("Agency" & "Prescribed Persons") working on the project (i.e. this is a standard elimination database to identify possible contamination of samples by people working in the lab, etc)

Comparisons will be made between the DNA Profile generated for each set of unidentified human remains and every other profile in the database. Thus each DNA Profile from the mass grave will be compared against:
  • every other profile from the mass grave (to see if the children are related)
  • all the DNA profiles contributed by permitted family members
  • all the DNA profiles in the elimination databases ("Agency" & "Prescribed Persons")

The wording of the objectives of the identification programme is particularly interesting. The aim is to allow family members to be informed that an identification has been made and to allow them to decide what to do with the remains. Thus the objective is primarily focussed on the immediate family of the deceased person and less on the right of the deceased person to have their identity restored in death. This raises the question: as Irish citizens, do all the children buried in the mass grave at Tuam have the right to have their name on their gravestone? 

Nowhere does the proposed legislation discuss what happens to the ones that cannot be identified (e.g. no DNA Profile obtained). Or what happens to the ones who can potentially be identified (e.g. excellent DNA Profile) but for whom no family has come forward.

Perhaps the most contentious aspect of the proposed legislation is who it allows to take part in the comparison database. All potential family members must be vetted. No one is automatically allowed in to the family part of the database. And those permitted to take part are restricted to immediate family members (i.e. parent, child, sibling, half-sibling). Aunts, uncles, nephews and nieces are all excluded as are 1st cousins and anyone more distantly related.

Furthermore, the evidence you need to prove that you can take part will be specified by the Director of the Agency ... 

Appeals can be made to an Adjudicator (p85) but will the answer be "no" to other family members?

The section entitled "Head 66" appears to allow for non-immediate family to be involved but I am unsure of this interpretation - it may be that it only relates to samples given by permitted family members before the legislation was introduced who have subsequently died. It states that a sample from a person who "reasonably believed that he or she was closely related" to a person in the mass grave would be allowed into the database but there is no definition of what they mean by "closely related" - does it extend to nephews and nieces? The situation is complicated by a missing page in the document (i.e. page 71 which contains "Head 54 - Taking of Samples from family members to generate DNA Profiles").

Given the range of dates when the Tuam children died (1925-1961) there is unlikely to be many / any living parents, there may be some siblings, but the larger proportion of surviving family members will be more distantly related (e.g. nephews and nieces). It appears that these relatives will not be allowed in the database. Is this ethical?

It may be that the reason why the range of permitted family members is restricted to parents, children, siblings and half-siblings is because this is similar to the range of relationships that standard forensic tests can detect. Genetic genealogy tests can detect a much broader range of relationships, including 2nd, 3rd and 4th cousins. If these tests were to be used, the range of permitted family members could be extended much further ... and this would raise the ethical question: what range of family members should be included? Should anyone with Irish ancestry be allowed to be included? Should identification extend to all the children or just the ones whose family members come forward?

Familial Identification (p73) will be made on the balance of probabilities and the outcome of comparisons will describe one of several possible outcomes including:
  • a strong likelihood of a familial link consistent with the relationship to the permitted family member
  • moderate likelihood of a familial link
  • weak familial match 
  • no familial match
... but how are these likelihoods defined in practice. This is unclear. And will Genetic Genealogy techniques be applied in doubtful cases? Appeals against the likelihood decision can also be made to an Adjudicator (p85). 

In addition, the above wording suggests that genetic genealogy will not be employed in the identification process, as this sort of wording would not arise with standard genetic genealogy tests (e.g. autosomal SNP array). If genetic genealogy is not to be employed, this could have significant implications for the chances of identifying sets of remains.

The decision whether or not to proceed with a full excavation, exhumation and identification of the mass grave hinges on the results of a Pilot Programme and will be made by the Director of the Agency in charge of that particular mass grave (be it Tuam or Bessborough or wherever). The decision largely depends on the proportion of samples tested that generate a reasonable DNA Profile for comparison purposes. But this raises several pertinent questions: 
  1. what type of DNA Profiles will be generated as part of the Pilot Programme??
  2. what would be considered a reasonable DNA profile?
  3. what proportion of reasonable profiles would be needed for a Go decision? 30%? 50%? 70%
  4. if genetic genealogy tests are not performed in the Pilot Programme, this could detrimentally influence the Go / No Go decision 

Destruction of samples is also a potential problem. Destruction of samples from permitted family members is set to occur 3 months after a DNA Profile has been generated ... but what kind of profile? autosomal STR? autosomal SNP array? WGS? It might be better to store the sample in case more comprehensive testing is indicated at a later point in time ... or until alternative family members come forward.

There is no mention of what will happen to samples from the unidentified human remains. Will these be stored? Or will they be destroyed? And under what circumstances?

If you want to make a submission regarding this proposed legislation, the closing date is tomorrow 24th Jan 2020. The draft legislation can be found here and you will find full instructions for making a submission on the Irish government's website here.

Maurice Gleeson
Jan 2020