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New study on implications of changing Article 41

By Sarah Mac Donald - 06 May, 2015

bunreacht+na+heireannThe Iona Institute has warned that preference for motherhood and fatherhood in Irish law is likely to become unconstitutional under the new Article 41 if the referendum on redefining marriage is passed on 22 May.

The warning follows a major new legal study commissioned by the Iona Institute on how the passing the marriage referendum will change how the family is viewed in Irish law.

The legal study, which was carried out by Michael Collins SC and Paul Brady BL shows that any ability to lawfully distinguish between same sex and opposite sex couples for purposes such as adoption will be severely and probably wholly undermined.

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

According to the Iona Institute, 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 the Iona Institute put 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 experts are 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.

If Article 41 is changed as the Government is proposing, it would become constitutionally more difficult to reflect in Irish law 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.

According to the Iona Institute the conclusions of this opinion are very significant for the current debate on the marriage referendum.

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.

The legal opinion can be read in full here.

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