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  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  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  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  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  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  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.