Preference for motherhood and fatherhood in Irish law likely to be unconstitutional under new Article 41

If we pass the marriage referendum as the Government wants it will have profound changes on how we view the family in our law. A major legal opinion commissioned by The Iona Institute examines this question. It shows that any ability to lawfully distinguish between same sex and opposite sex couples for purposes such as adoption etc. will be severely and probably wholly undermined.

The legal opinion is by Michael Collins SC and Paul Brady BL.

The opinion examines the Constitution, and in particular Article 41, called ‘The Family’, in the light of various rulings by the Supreme Court.

It shows that the constitutionally protected right to marry is also a constitutionally protected right to found a family, which includes the right to have children. The right to marry therefore is unavoidably linked to the definition of the family.

The specific question to Counsel was:  If the Amendment takes effect will it be constitutionally permissible in any law or in the application of any law to require, permit or give effect to more favourable treatment for a married couple comprising a man and woman than for any other type of married couple, in particular with regard to laws (a) providing for adoption and fostering of children, (b) regulating surrogacy, (c) regulating assisted human reproduction?

The legal opinion is of the view that the answer in each case would probably be ‘No’. That is, if either adoption law or laws around surrogacy and assisted human reproduction (AHR) were to give preference to married men and women as distinct from two married parents of the same sex on the grounds, for example, that children being placed for adoption or conceived via AHR and/or surrogacy ought to have a married mother and a father where practicable, such laws would likely be struck down as unconstitutional save in very exceptional circumstances.

In other words, if Article 41 is changed as is proposed, it would become constitutionally more difficult to reflect in our laws the view that married men and women are different from two married people of the same sex in matters concerning the raising and welfare of children.

To read the legal opinion in full, click here.

(Please note: The opinion is confined to a legal analysis of the above question regarding the legal implications of the proposed amendment. It does not express any view on the merits of the amendment. The authors of the legal opinion have provided it to their client the Iona Institute for its sole use and assume no liability to any other party for the contents of the opinion.)

The Iona Institute believes the conclusions of this opinion are very significant for the current debate. For example, the recently passed Children and Family Relationships Act permits same-sex couples to adopt and use AHR on the same terms as married men and women despite the fact that two men or two women can never give a child a mother and a father.

Given what the opinion says about the legal implications of the amendment for future laws dealing with such matters, it should now be clear that the amendment, if passed, will make it much harder for a future Government to reverse those aspects of the Children and Family Relationships Act 2015.