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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