ON FRIDAY 15 May, a statement was issued by a new group of lawyers outlining the real concerns which they have with the marriage referendum proposal and why these are leading them to vote No. The full statement can be read here. One of the points raised relates to the impact of the amendment on future laws relating to children.
Such concerns are routinely dismissed by Yes campaigners. They want us to believe that on 22 May all we are voting on is the question of access to marriage. That is not actually the case. That’s because we are being asked to amend Article 41 of the Constitution, entitled “The Family”. The effect of the new section to be inserted into the Constitution (the proposed Article 41.4) will be to recognise two men or two women married to each other as a constitutional family and as what the Constitution terms: “the natural primary and fundamental unit group of Society”; “the necessary basis of social order”; “indispensable to the welfare of the Nation and the State”; and “the primary and natural educator of the child”.
The rights and interests of children are clearly implicated in any amendment to Article 41. Lest there be any doubt, in North Western Health Board v H.W. [2001] 3 IR 622 the Supreme Court held that “the rights of the child have to be construed in accordance with Article 41 which places the family at the centre of the child’s life and as the core unit of society”. The enactment this year of the new Article 42A dealing with various aspects of the rights of the child does not change this. It remains the case that all provisions of the Constitution (including requirements as to the “best interests” of the child in Article 42A.4.1) will continue to be read and interpreted by the courts harmoniously. Article 41 will continue to shape the legal and constitutional rights of parents, children and the family itself.
There are a number of ways in which the rights and interests of children are implicated in the proposed amendment. First, a same-sex married couple, as a married couple, will enjoy a constitutionally protected right to procreate. This has been recognised by the Referendum Commission. It may well be a worldwide first.
The question of access to assisted reproduction
As to what this right might mean in practice, Dr Andrea Mulligan (a legal advisor to the Lawyers for Yes group) wrote in the Dublin University Law Journal in 2012 that “there is a good case to support the application of the right to procreate to assisted reproduction.” She went on to say that the question of whether the right was in play in the case of surrogacy or donor-assisted human reproduction (DAHR) “is more difficult to answer”, but concluded “[s]uch situations could conceivably be understood as procreation in the constitutional sense”.
What Dr Mulligan considered in 2012 to be “conceivable”, would in the view of many lawyers become even more likely in the event of a deliberate amendment to the constitution extending the right to procreate to same-sex couples who, by the very reason of their being same-sex, could never exercise their right procreate without recourse to DAHR or, in the case of male couples, DAHR and surrogacy combined.
As Mulligan noted in her 2012 article: “Gay men would accordingly have a stronger interest in claiming an expansive right to procreate as their ability to procreate is more likely to be restricted” by “a general prohibition on the use of or payment of surrogate mothers”. We know from other jurisdictions that the introduction of same-sex marriage increases demand for surrogacy services. If the amendment is passed, any legal claim for an “expansive right to procreate” by a gay married couple could only be strengthened by reason of their new status as a constitutional family.
This means that a passed referendum could make it much more difficult for the Oireachtas to follow the policy choices of a host of other European countries who restrict gamete donation and prohibit surrogacy. Countries like Germany, Italy, Austria, Switzerland, Spain and Finland do all or some of this in order to protect a child’s right to know their biological parents as well as to protect economically vulnerable women against exploitation.
It could all have been very different
Another way in which children are implicated in this referendum concerns a child’s right not to be deliberately deprived of a mother or a father in order to satisfy an adult’s wish to have a child. Only an opposite-sex couple can provide an adopted, donor-conceived or surrogate-born child with both a mother and a father. However, a passed referendum will make it more difficult for the State to give any preference in laws concerning adoption, DAHR or surrogacy to opposite-sex couples. This has also been confirmed by the Referendum Commission. It says it is “difficult to imagine” how the State, if the referendum passes, could justify differentiating between opposite-sex and same-sex married couples.
It could all have been very different. Civil partnerships already give virtually all the statutory rights married couples enjoy to same-sex couples. The Government could have added constitutional recognition and status to same-sex unions in the context of Article 40’s guarantee of equality and left Article 41 (“The Family”) alone. Or the Government could have accepted an amendment to the referendum Bill which was proposed in the Seanad whereby the right of same-sex couples to marry would have been provided for in a way that expressly protected the freedom of the Oireachtas to legislate regarding the rights and interests of children.
In the interests of informed public debate the people have a right to know the knock-on legal effects of what they are voting on.
Eileen King is a solicitor and a member of Lawyers with Real Concerns Voting No.
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