The Marriage Referendum on ConstitutionProject.ie

With the broadcast moratorium now in effect citizens have some breathing space to reflect on the Marriage Referendum before polling closes tomorrow.

ConstitutionProject.ie, through Dr Conor O’Mahony, Dr Laura Cahillane and Dr Seán Ó Conaill, has engaged with many aspects of the various issues and debates surrounding the Marriage Referendum via media engagement, speaking at public events/debates and in particular blogging here on ConstitutionProject.ie.

Immediately prior to the campaign beginning in earnest Dr Conor O’Mahony looked at how the issue of Marriage Equality made it the US Supreme Court.

Dr Seán Ó Conaill explored the potential issues surrounding the use of terminology in the Referendum Campaign particular with regard to the Referendum Commission.

Although not directly connected to the Referendum itself there has been much discussion during the campaign on the Children and Family Relationships Bill. Dr Conor O’Mahony explored the constitutionality of the bill.

The Irish language wording of the proposed amendment attracted a lot of attention in the early stages of the campaign. Dr O’Mahony and Dr Ó Conaill engaged in a high profile debate in the Irish Times. Dr Ó Conaill also analysed the original wording and drafting process (also available in Irish) and the revised final wording.

During the height of the Marriage Referendum campaign the Supreme Court issued its judgment in the Jordan case. Although the Jordan case was concerned with the Childrens’ Referendum and not the Marriage Referendum, the case had relevance to all referendum campaigns (as discussed by Dr Cahillane here).  The judgment helped to clarify the terms of engagement for the ongoing referendums; Dr Ó Conaill provided some analysis here.

However, of all the issues in the Marriage Referendum debate, the one that attracted the most attention and interest was the issue of surrogacy and donor assisted human reproduction. Dr O’Mahony conducted an extensive analysis of the issue, which was widely quoted and referred to in the course of the campaign (see, eg., the Irish Times Newspaper, the Irish Times podcast, the Irish Examiner, RTE Drivetime and Spirit Radio) and was the most viewed piece on ConstitutionProject.ie with almost 7,000 views. Dr Laura Cahillane also appeared on an RTÉ Prime Time feature on the issue and offered her expert opinion. Finally, Dr O’Mahony concluded the commentary on the issue with an analysis of the number of lawyers offering opinions on both sides of the surrogacy/DAHR issue.

Thank you for reading!

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The Wisdom of Crowds: Legal Opinions on Surrogacy, DAHR and the Marriage Referendum

Dr Conor O’Mahony

The campaign around the referendum on marriage equality has seen technical argument around the interpretation of the Irish Constitution rear its head in places it is not often seen, whether in the media, the barroom or the doorstep. The central point of dispute has been whether the proposed amendment would give same-sex married couples a constitutional right to access donor-assisted human reproduction (DAHR) or surrogacy services and/or tie the hands of the Oireachtas with respect to laws governing access to such services and governing adoption.

The No campaign has argued vociferously that these consequences will flow from a Yes vote, and has produced some lawyers to support this claim. The independent Referendum Commission has stated that they will not, and this view has been echoed by a large number of lawyers (some of whom are associated with the Yes campaign and some of whom have not declared a voting intention). How should the average voter react to this?

Many readers may have heard of the concept of the Wisdom of Crowds (for example through James Surowiecki’s 2004 book). A much older version of this line of thought is Condorcet’s Jury Theorem, which dates back to 1785. The jury theorem holds that a decision made by majority vote of a group of people becomes more likely to be correct as the size of the group increases, provided that each member of the group is more likely than not to be correct (i.e. more than a 50% chance).

It seems like a reasonable assumption that highly educated, experienced and professional legal experts have a greater than 50% chance of being correct on a question of legal interpretation. Thus, the more legal experts that are asked a question, the more likely it is that the position arrived at by the majority of them is the correct one. This helps to explain why the number of judges used to decide a case increases as the issues become more complex. Routine cases are decided by a single judge. Complex High Court cases, like Marie Fleming’s case on assisted suicide in 2013 or last December’s judgment on whether life support could be removed from a brain dead pregnant woman, are decided by a Divisional Court of three judges. Supreme Court cases are decided by five judges, and the most complex – like last November’s judgment on surrogacy – are decided by seven.

In light of the above, it has been striking to note how the overwhelming body of opinion among Irish lawyers has supported the view taken by the Referendum Commission – namely, that a Yes vote in the referendum will not give any married couple, gay or straight, a right to access DAHR or surrogacy services. The same number hold the view that if credible evidence could be produced to the effect that it is not in the best interests of children to be parented by same-sex couples, the Oireachtas would remain free to legislate so as to prevent this from happening, whether through adoption, fostering, DAHR or surrogacy.

A quick run-down of the lawyers holding this view seems in order. I expressed this view in a blog posted on this site on April 21. Since, then, aside from the Referendum Commission, this analysis has been publicly echoed by one large representative group and at least thirteen further individual legal experts:

Contrast this with the number of lawyers produced by the No campaign to support their claims: Dr Thomas Finegan, legal advisor to Mothers and Fathers Matter; a legal opinion commissioned and published by the Iona Institute (written before Article 42A on Children came into effect); and a group of three lawyers styling themselves as “Lawyers with Real Concerns Voting No”. Thus, on one side is a group with hundreds of members; at least fourteen separate individual opinions, and the independent Referendum Commission. On the other side is a group with just three members and just two individual opinions (one of which fails to account for recent constitutional change).

Obviously, many of the names listed above have taken a partisan position in the referendum – as would be expected in a vigorous democratic debate – and could therefore be accused of bias. Presumably, RTE Prime Time approached Dr David Kenny and Dr Laura Cahillane as they are not associated with either campaign and have not publicly declared their voting intentions. The key part of all of the above, however, is that the Referendum Commission is required by law to be completely impartial – as a body funded through the public purse, it is bound by the principles set down in the McKenna and McCrystal judgments that preclude public funds being used to distribute information that either expressly advocates a vote in either direction or is biased in favour of a vote in either direction. A notable feature of the RTE Prime Time feature was the virtually identical analysis presented by Mr Justice Kevin Cross of the Referendum Commission and Dr Kenny and Dr Cahillane (which was also closely aligned with the analysis published on this blog a full three weeks earlier). While two independent lawyers have agreed with the Commission, none have agreed with the No campaigners.

Recall that Condorcet’s Jury Theorem holds that a decision made by majority vote of a group of people becomes more likely to be correct as the size of the group increases. By now, a large number of lawyers have had their views canvassed on this issue. The clear majority are of the view that the analysis of the issue offered by the Referendum Commission is correct. This is unsurprising, given the independence and expertise of the Commission, and also re-assuring to the average voter.

In spite of this, the No campaign has refused to accept that the Referendum Commission’s statements undermine their position. Ultimately, an argument like this would be resolved in the courts, and as noted above, a case on a sensitive issue like surrogacy would be heard by the Supreme Court sitting as a court of seven judges. Therefore, an argument can only succeed if at least four Supreme Court judges accept it. Since Supreme Court judges are products of the legal community, it seems fair to suggest that a clear majority opinion among the legal community is a good indicator of what a future Supreme Court might hold. In this case, the odds of four Supreme Court judges being persuaded by the claims being made by the No campaign seem remote in the extreme.

If the No campaign is really concerned about what it professes to be concerned about, then its members should be relieved to be in the minority. All indications are that the concerns that they have expressed about the legal impact of a Yes vote are highly unlikely to come to pass. Perhaps they continue to express those concerns because they hold them so deeply; perhaps they do so in order to deliberately stoke up fear and confusion among undecided and “soft Yes” voters so as to advance opposition to an unrelated issue. Perhaps it is a little of both. Whatever the explanation, anyone who is considering voting No solely on the basis of fears around legal implications related to adoption, DAHR or surrogacy should now know that they can safely exclude those issues from their considerations.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.

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Answers to Marriage Referendum Questions posed on RTÉ’s Prime Time

 

Dr Laura Cahillane appeared on last night’s Prime Time as part of a panel of experts which included David Langwallner and Dr David Kenny and the Chair of the Referendum Commission Mr Justice Kevin Cross. The footage can be viewed here (the segment appears from 22 minutes onwards).

Dr  Cahillane’s written answers to the Prime Time Questions on the Marriage Referendum are available here;

 

  1. If the Marriage Equality Referendum is passed will it be constitutionally permissible to favour an opposite sex married couple over a same sex married couple in any laws, regulation, or policy of a statutory body, governing the adoption and fostering of children?

 

If the referendum is passed, opposite sex and same sex married couples will be equally recognised and protected by the Constitution. Article 40.1 prevents arbitrary discrimination so it would not be possible to favour opposite sex married couples in any way.

 

The only exception to this would be if it was possible to prove conclusively that same-sex couples are essentially less suitable to act as parents than opposite-sex couples or that children fare better when raised by opposite-sex parents rather than same-sex parents. However, there is no research to support this position, as far as I am aware.

 

 

  1. If the Marriage Equality Referendum is passed, will it be constitutionally permissible to favour opposite sex married couples over same sex married couples in any laws, regulations, or policy of a statutory agency, governing surrogacy and assisted human reproduction?

 

Currently, we do not have any sort of detailed legislative framework around surrogacy and assisted human reproduction. There is certainly no right to access surrogacy or any related services. If in the future, the Oireachtas provides legislation in this area and if the amendment is accepted by the people, it will not be possible to positively discriminate in favour of opposite-sex couples in the absence of proof that this would be in the best interests of the child.

 

 

  1. If the Marriage Equality Referendum is passed, could a same sex couple successfully challenge any future restrictions on surrogacy and donor assisted human reproduction, even if that restriction also applied to opposite sex couples, on the basis that it is interfering with their constitutionally-protected right to create a family under this amendment?

 

 

There are a few points which need to be addressed here. First, the right to procreate is not actually derived from Article 41, which is the Article currently under discussion. While, in the original case where this right was first discussed, the judges linked the right to marriage, it was decided that the right was not located in Article 41 but rather it was an individual, personal right and part of the doctrine of unenumerated rights in Article 40.3. So, while it has been linked to marriage, given that it is a personal right, it is open to argue that persons who are not married could claim this right.

 

Also, it is important to note that this right relates to natural procreation only – it does not include the right to access surrogacy or AHR services. Furthermore, the right is very limited. The State is lawfully empowered to restrict the right, provided it acts legitimately and proportionately, and the right can be overridden. Thus, even if this right was extended to surrogacy and AHR in the future, the Oireachtas would be perfectly entitled to place restrictions on it.

 

Finally, of crucial importance here is the new Article 42A which has recently been inserted into the Constitution and which provides that the best interests of the child are paramount in any decision regarding their welfare. As Dr Geoffrey Shannon has recently pointed out, no-one has a right to a child; a child has a right to a family and the child’s best interests will be the determining factor.

 

The bottom line is that a yes vote will not mean an automatic right to procreate and it will not create a right to access surrogacy or AHR services for same-sex couples.

 

Dr Laura Cahillane

Twitter @LaurCah

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Supreme Court Judgment in the Jordan Case and the Childrens’ Referendum

 

Dr Seán  Ó Conaill

The Supreme has today unanimously rejected a challenge taken by a private citizen which stemmed from the Childrens’ Referendum which was held in 2012 but which could not yet fully become part of the law of the land until this challenge was resolved.

 

The genesis for the case was the Supreme Court’s ruling in the McCrystal case which unanimously held that the Government had illegally interfered with the Childrens’ Referendum by running a biased information campaign with tax payers’ money in clear violation of the earlier McKenna principles.

 

Ms Joanna Jordan was supreme courtchallenging the outcome of the referendum using a little explored process contained in the Referendum Act, 1994 whereby the result in a Referendum can be set aside if illegal interference by the State in the Referendum process had a “material affect” on the outcome.

 

She was also challenging the Referendum Act, 1994 itself, claiming that the Act sets too high a burden upon those who are seeking to set aside referendum results, to the point where it is virtually impossible for a petitioner to succeed. She claimed that given the near impossible burden, the State is allowed to act with near impunity – free to illegally interfere, knowing that the petitioners can never succeed. Jordan claimed that in such petitions the burden of proof should shift from the petitioner to the State where illegal activity was clearly established.

 

The High Court had previously dismissed her petition and her challenge against the Act itself.

 

It is a core value of our democracy that the sovereign will of the people be respected at all times and cases such as Jordan and McKenna set two competing elements of that sovereignty against each other.  On the one hand, the people must be allowed to cast their votes in a free and fair manner without interference; but on the other hand, unelected Courts are understandably very slow to be seen to overturn the will of the people as expressed in a referendum, even where it may seem that a referendum process was tainted by illegality.

 

Much of today’s Supreme Court decision focused on what test should be used in order to assess if illegal activity has had a “material affect on the outcome of a referendum”.

 

The Courtref pic held that “…’material affect on the outcome of a referendum’ involved establishing that it is reasonably possible that the irregularity or interference identified affected the result. Because of the inherent flexibility of this test, it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person could be in doubt about, and longer trust, the outcome of the election or referendum”.

 

The Court also went on to hold that the Act itself was not unconstitutional and that the burden of the test was reasonably proportionate to the gravity of the relief sought.

 

Ultimately this decision in of itself is not surprising. While there is no doubt the Government made a significant error by engaging in illegal and entirely unnecessary behaviour during the Childrens’ Referendum, it was never likely that any Court would interfere with the sovereign will of the people as expressed at the referendum (described as an “awesome undertaking” by the Supreme Court in the Hanafin decision in 1996). The more pertinent questions which emerge from the aftermath of this case are about the entire referendum process itself: how we provide information to the people on the question they are voting on, and how we ensure that Governments don’t interfere illegally with the People’s sacred right to amend their own Constitution. If further challenges like McKenna, Hanafin, McCrystal and Jordan are to be avoided in the future, serious consideration needs to be given to how these challenges are met, and today’s judgment should be the beginning rather than the end of that conversation.

 

Dr Seán  Ó Conaill

Twitter @soconaill

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The Constitution, the Right to Procreate and the Marriage Referendum

Dr Conor O’Mahony

During a debate about the forthcoming Marriage Equality referendum on Sunday’s Marian Finucane Show, the following claim was made by Patrick Treacy (at 6.20 minutes in):

“The core of the issue is this: Frances Fitzgerald and Leo Varadker very prudently and very wisely are both in favour of legislative restrictions on donor-assisted human reproduction and on surrogacy. The effect of this referendum proposal is to give constitutional status to donor-assisted human reproduction and surrogacy, which means, in essence, that legislative restrictions are then cast in doubt … it is so exceptionally serious. To give constitutional status to donor assisted reproduction and surrogacy – it puts all legislative restrictions under constitutional attack, so to speak.”

 A similar claim was made by Thomas Finnegan of Mothers and Fathers Matter (at 10.00 minutes in):

“… the fact is that if this referendum passes, it would be impossible for any future Oireachtas to protect the right of a child to a mother and a father. That goes not just for adoption, not just for surrogacy, but also donor human assisted reproduction as well. It would effectively mean that the Constitution will require that some children will be left motherless by State design.”

Subsequently (at 11.45), Dr Finnegan, addressing the question of surrogacy, stated that the amendment would:

“… allow the Oireachtas to regulate it as it sees fit … if this passes, all the rights that married couples currently have will be transferred over the same-sex couples. That includes the right to procreate – but two men can only procreate if they use surrogacy or donor assisted human reproduction … that could be very plausibly framed as a constitutional right on behalf of the two men, in which case the Constitution will be denying, completely and absolutely in all senses, that the children have any sort of right to have a mother and a father where possible.”

Dr Finnegan has repeated these and similar claims elsewhere:

“If the amendment passes, two men or two women will be given the same constitutionally recognised right to have children as a man and woman even though no two people of the same sex can have a child without adoption, IVF or surrogacy and can never give a child the love of both a mother and a father … Preferring a mother and father in adoption and other laws would actually be repugnant to our constitution”.

Do these central planks of the No campaign’s argument actually conform to the reality of Irish constitutional law, as set out in the Constitution itself and the court decisions interpreting it?

The first question is whether the amendment would, as claimed, give same-sex couples who marry a constitutional right to access donor-assisted human reproduction and surrogacy and make it impossible for the Oireachtas to pass laws regulating or restricting access to such services. The case law does not support this claim. The courts have not, to date, recognised a right of opposite-sex married couples to unfettered access to such services; and far from claiming that the constitutional protection afforded to the institution of marriage precludes regulation or restriction of access, the courts have repeatedly called on the Oireachtas to enact long-overdue legislation to provide a legal framework regulating artificial human reproduction, lest Ireland “become by default an unregulated environment for practices that may prove controversial or, at least, give rise to a need for regulation” (per Hardiman J in Roche v Roche [2010] 2 IR 321 at 383). The recent decision of the Supreme Court on the issue of surrogacy in MR and DR v An tÁrd Chláraitheoir [2014] IESC 60 repeatedly stressed the preference of the Court that controversial social issues such as this be dealt with by way of legislation, with the courts playing a highly deferential role and preferring not to involve themselves.

There is a constitutional right to procreate, but the case law is minimal and the scope of the right deriving from that case law is, to date, narrowly drawn. Only two cases have arisen, and in both cases, the party seeking to rely on the right was ultimately unable to exercise it as the restrictions being challenged were found to be proportionate.

The right was established in Murray v Ireland [1991] ILRM 465, where it was conceptualised as a right existing within marriage and referred clearly to natural procreation. The plaintiff couple were serving a life sentence in prison for the murder of a member of the Gardaí. While recognising that they had a constitutional right to procreate within marriage, the Supreme Court rejected their argument that they should be facilitated in exercising this right while in prison. The significance of this outcome in the current context is that the right is not unlimited, and will always be subject to reasonable and proportionate restrictions by the State in the pursuit of legitimate aims. If this is the case for natural procreation, then it is clearly also the case for assisted human reproduction (AHR) (more so, if anything, in light of comments like those of Hardiman J above, which have never been made in relation to natural procreation).

As noted, Murray was concerned solely with natural procreation. Whether the constitutional right to procreate actually extends to a right to access AHR services is open to debate, and case law to date has not clearly established that it does. The best opportunity for the courts to recognise such a right was Roche v Roche [2010] 2 IR 321, but the opportunity was not taken. The case concerned a married couple who underwent successful IVF treatment, following which a number of frozen embryos remained. They subsequently separated and the wife sought to be implanted with the remaining embryos, but her husband refused to consent to this.

The case focused on the question of whether the embryos enjoyed a constitutional right to life under the Eighth Amendment (Article 40.3.3°), and the central finding of the Court was that they did not. The right to procreate was a minor side issue that was completely ignored by four of the five judges. Denham J, in one very brief paragraph (para. 115 on p.366), suggested that the case did involve a proportionate restriction on the woman’s right to procreate by virtue of her husband’s right not to procreate. However, this is an isolated obiter dictum passage and a minority view in a five-judge court. Accordingly, it is not sufficient to establish a constitutional right of married couples to access AHR services. Moreover, Roche only addressed IVF treatment using the couple’s own gametes; it did not even consider the question of a supposed “right” to access donor gametes.

The only other case that comes even close to addressing this issue is MR and DR v An tÁrd Chláraitheoir [2014] IESC 60, which involved a married couple engaging in a surrogacy arrangement with the wife’s sister, and concerned the question of who the child’s legally recognised parents would be. Again, the case did not establish a constitutional right of married couples to access AHR services. The Irish Human Rights Commission acted as amicus curiae in the case and made a submission arguing that the right to procreation established in Murray v Ireland acted as a limit on what the law could do in this area (see judgment of Clarke J at para. 4.18). This argument received little attention from the Court, and to the extent that it did, its relevance to the case was dismissed by McMenamin J (at para. 65). Equally, Article 41 on the Family, which is the provision at issue in the forthcoming referendum, was scarcely mentioned by the majority members of the Court– only the dissenting judge, Clarke J, really discussed it (para. 8.0), and even then only in the context of legal recognition of family relationships and not of access to assisted human reproductive services.

The clear message of MR is that matters of surrogacy are matters for the Oireachtas and not for the courts – see, for example, the closing words of Denham CJ’s judgment (at paras. 113-118), echoed by her colleagues on the Court: “Any law on surrogacy affects the status and rights of persons, especially those of the children; it creates complex relationships, and has a deep social content. It is, thus, quintessentially a matter for the Oireachtas … The issues raised in this case are important, complex and social, which are matters of public policy for the Oireachtas.” Similarly, Hardiman J stated (at para. 19): “I am far from suggesting that the Oireachtas should (or should not) follow the English precedent, but I do not think that any judgment of the Court should preclude them in advance from doing so if they thought fit.” Read together with Hardiman J’s comments in Roche, it is clear that the same approach would be taken to AHR generally, especially where donor gametes are involved. The clear preference of the courts is to stay out of these issues and avoid interfering in the judgment of the Oireachtas on complex social matters.

The above analysis shows that it has never been established that opposite-sex married couples have a constitutional right to access assisted human reproductive services, whether IVF, donor-assisted human reproduction or surrogacy. If opposite-sex married couples do not currently have this constitutional right, then it follows that same-sex couples would not have it either in the event that the referendum is passed. Of course, it is possible that a future case might apply the right to procreate in this context; the Irish courts have always held that the Constitution is a living document that falls to be interpreted in light of changing conditions in society. However, even if this occurs, it is clearly not the case that the recognition of a constitutional right to access assisted human reproductive services makes such services immune from legislative regulation or restriction. On the contrary: Murray established that even natural procreation is susceptible to reasonable and proportionate restrictions. Roche made it clear that the courts actually want the Oireachtas to impose such limitations in the context of AHR, and MR made it clear that the courts see this as a matter for the Oireachtas, and have a strong preference for deferring to legislative choice in this area. All of these points apply in the same way whether or not the referendum is passed.

The final question is whether a Yes vote might in some sense impact on the question of placing restrictions on access by same-sex couples to AHR services that do not apply to opposite-sex married couples. There are two constitutional provisions that would be central in such a case: the equality guarantee of Article 40.1, and the provisions of Article 42A on children, which was approved in a referendum in 2012 and is awaiting implementation pending the outcome of a court challenge (the Supreme Court will rule on Friday April 24).

Article 40.1 of the Constitution requires that all citizens be treated equally before the law, and case law has interpreted it as prohibiting arbitrary discrimination. The courts addressed a law that restricted access to parenting for a particular class of persons in T O’G v Attorney General [1985] ILRM 61. The case concerned section 5 of the Adoption Act 1974, which provided that a widower could only adopt a child if he had another child already in his custody (whereas no similar restriction applied to widows). The law was struck down as a violation of Article 40.1 as an unreasonable and arbitrary discrimination. McMahon J stated at pp.64-65:

“Widowers as a class are not less competent than widows to provide for the material needs of children and their exclusion as a class must be based on a belief that a woman by virtue of her sex has an innate capacity for parenthood which is denied to a man and the lack of which renders a man unsuitable as an adopter. This view is not supported by any medical evidence adduced before me … I am satisfied that the proviso to s.5 is founded on an idea of difference in capacity between men and women which has no foundation in fact and the proviso is therefore an unwarranted denial of human equality and repugnant to Article 40.1.”

The implication of this decision in the present context is that the question of whether access to AHR services for same-sex couples could be subjected to restrictions hinges not on their marital status but on the relevant evidence regarding their parenting capacity. This position would be bolstered by Article 42A.4, which requires that legislation shall provide that the best interests of children be the paramount consideration in all decisions regarding guardianship, custody, access and adoption. Such a law could not be justified if there was no evidence to support the notion that same-sex couples are inherently less suitable to act as parents than opposite-sex couples. Conversely, the law could potentially be justified if the court could be convinced that sufficient evidence was available to prove that children experience worse outcomes when raised by same-sex rather than opposite-sex couples. If the state of the social science evidence were unclear and contested, the courts would be likely to defer to the judgment reached by the Oireachtas when enacting the legislation, as per the recent Supreme Court decision on surrogacy.

In summary, the claims made on Sunday’s Marian Finucane Show regarding the legal impact of the referendum result on the area of AHR are not supported by the relevant case law. The outcome of the referendum will have no impact in this area. The Oireachtas will remain free to regulate AHR as it sees fit. Article 41 of the Constitution has played almost no role in the case law to date and is therefore of minimal significance to any future constitutional challenges in this area. Article 40.1 mandates equality in the absence of compelling evidence justifying discrimination, which suggests that social science rather than law may be the real consideration in any theoretical attempt to restrict access by same-sex couples to AHR services.

Dr Conor O’Mahony is a senior lecturer in constitutional law and child law at University College Cork.

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