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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