Call for Applications: FLAC Public Interest Law Fellowship

FLACThe Free Legal Advice Centres (FLAC) is now accepting applications for the 2015 Thomas Addis Emmet Fellowship in Public Interest Law. This is a unique opportunity awarded each summer to an Irish law student interested in working on critical social justice issues and developing skills in public interest law practice.

Run in conjunction with the University of Washington, the Fellow will spend two months with a public interest law justice centre at the forefront of human rights and social change in Seattle, Washington gaining hands-on experience of targeted public interest litigation, policy development and campaigns.

The Fellowship is open to all current law students, including students that have studied law as part of their undergraduate degree, postgraduates in law, and students of the King’s Inns or Law Society professional practice courses.

To apply please submit an essay on an area of public interest law of your choice (max. 2000 words) along with a cover letter and CV to info@flac.ie by Friday 13th of February 2015.

For more information, please download the information sheet here.

 

 

Call for Applications: FLAC Public Interest Law Fellowship

Today in Irish Legal History: De Burca and Anderson v AG

On December 12, 1975 the Supreme Court handed down judgment in De Burca and Anderson v. AG, and found the Juries Act, 1927 unconstitutional. Kevin O’Higgins’ Act had excluded women from jury service, in order to shield them from matters which ‘one would not like to discuss with the feminine members of one’s own family‘.  Anderson and De Burca were members of the Irish Women’s Liberation Movement, and were represented in court by Donal Barrington and Mary Robinson. The women had been arrested outside the Dail after a march against the Prohibition of Forcible Entry Bill, organised by the Committee Against Repressive Legislation.  The Bill was designed to outlaw the occupation of vacant houses; an important tactic for housing rights movements in the 1970s. Women were the primary victims of the Dublin housing shortage. The IWLM members had been charged with wilfully obstructing a police officer in the course of his duty. Nell McCafferty in her book Nell describes the events:

There were kerfuffles in the dark, at the entrance to the Dail, as ministers were leaving. We shouted at the lines of limousines, not realizing they were empty – the ministers had decided to leave by a back entrance and meet the chauffeurs there. Mairin de Burca and Mary Anderson were soon in the arms of the law, charged with breaching the peace, and quickly after that in the legal embrace of Mary Robinson, who was to represent them in court. The two women opted for trial by jury. Jury service was confined to property owners: they would have to face twelve property-owning men. Mairin, who had already one time in jail for an anti-Vietnam War protest [she and Marie McMahon, who was also jailed, had taken part in a protest which burned the American flag and smeared cows’ blood on the steps of the British Embassy] and been deeply marked by the loss of the privacy she cherished, wanted to be tried by a jury of her peers and wondered how she could insist on that, in court, without being sent down for contempt. Robinson thought they could take a constitutional action to challenge the Juries Act. They did. They won. Women now serve on juries. It took years to push the challenge through the courts…

Today in Irish Legal History: De Burca and Anderson v AG

Legislating for Surrogacy.

We are please to welcome this guest post from Lydia Bracken, PhD Candidate and Department of Children and Youth Affairs Research Scholar at the Faculty of Law, University College Cork.

The urgent need to introduce legislation to govern the precarious position of stakeholders in the surrogacy process formed a common thread amongst the seven judgments handed down by the Supreme Court in its recent ruling in the MR and An tArd Chláraitheoir case. Each of the judges expressed disquiet about the current lack of legal regulation in this area and in relation to the fact that, presently, the legal status of children born via surrogacy is “determined by happenstance.” Certainty was said to be vitally important for families involved in the surrogacy process and such certainty could only be achieved through the enactment of legislation.

Initially, the Government had included provisions to regulate parentage in cases of surrogacy in the Children and Family Relationships Bill 2014. These provisions provided that, in a surrogacy arrangement, the woman who gives birth to the child (ie. the surrogate) would automatically be regarded as the legal mother. The commissioning parents could, however, subsequently apply for a parental order so as to extinguish the surrogate’s parental status and to acquire parental responsibilities and rights for themselves. These provisions have since been removed from the Bill, however, and so in light of the Supreme Court’s finding that the woman who gives birth to the child is to be regarded as the child’s legal mother, the question now arises as to whether these provisions will be reinserted and, if they are, whether this is appropriate.

It is questionable as to whether the original provisions would strike an appropriate balance between the rights of all stakeholders in the surrogacy process. In particular, it should be noted that the parental order, as envisaged in the Bill, could not be sought less than 30 days after and not more than 6 months after the child’s birth. Prior to the granting of this order, the surrogate would continue to be recognised as the child’s legal mother and her consent would be required before the order could be made. Therefore, until this consent is given, there would be uncertainty as to whether the child would remain as the legal child of the surrogate or whether parentage would be transferred to the commissioning parents. This leaves the commissioning parents in an undesirable position as their status as joint legal parents cannot be established until the surrogate has exercised her choice.

Although it is quite a rare occurrence, should the surrogate refuse to consent to the parental order, the only option available to the commissioning parents to establish a legal relationship with the child would be to apply for guardianship as per Head 42 of the 2014 Bill. Where the commissioning father is also the genetic father of the child, he may apply for guardianship immediately in the same manner as any other unmarried father. The commissioning mother, however, as a “non-parent”(notwithstanding the fact that she may also be genetically related to the child) would have to have shared responsibility for the child’s day-to-day care for a period of at least two years before she would become eligible to apply. Similarly, where the commissioning parents are a male same-sex couple, this two year waiting period would also apply to the genetic father’s partner. Moreover, the consent of the surrogate would be required before either of the commissioning parents could be appointed as guardians, although the court would be at liberty to dispense with the surrogate’s consent where it is unreasonably withheld and where it is in the best interests of the child to do so.

It is, however, quite uncommon that a surrogate would subsequently seek to keep the child and therefore refuse to consent to the parental order. Typically, the child will be taken into the care of the commissioning parents prior to the making of the order. It should be noted, however, that in this period prior to the making of the parental order, the surrogate, as opposed to the commissioning parents, would be entitled to make decisions in respect of the child, for example in relation to consent to medical treatment. A genetic father could enter into a guardianship agreement with the surrogate so as to obtain parental responsibilities and rights in advance of the making of the parental order, but this option will not apply to a non-genetic commissioning father or indeed to a commissioning mother. The child could, therefore, be left in a vulnerable position as the commissioning parents may be hindered from fully protecting his or her interests during this intervening period. Furthermore, if the surrogate was to die during childbirth, the child, as the legal child of the surrogate, would be entitled to succeed from her estate under succession law. It is unlikely that this would have been intended by the parties at the outset of the agreement.

By contrast, other countries have dealt with the question of the allocation of parentage in surrogacy arrangements through the use of pre-conception orders. In South Africa, for example, under the Children’s Act 38 of 2005, surrogacy agreements can be validated by the High Court before the surrogacy is undertaken. Where validation is granted, the commissioning parents will be treated as the legal parents from the moment of the child’s birth. The surrogate will not acquire any parental status and she is legally required to “hand over” the child as soon as is reasonably possible after the birth. It should be noted, however, that a distinction is made in South African law between “full” and “partial” surrogacy. In the latter case, where the surrogate is also the genetic mother of the child, she retains the right to terminate the surrogate agreement within sixty days of the birth of the child. In Ireland, however, given that the original provisions of the 2014 Bill proposed to exclude the use of “partial” surrogacy, this issue would not arise.

Requiring that parental status is determined prior to the birth of the child would seem to strike a more appropriate balance between the interests of those involved in the surrogacy process than the original Irish proposals. The pre-conception order provides certainty and it removes the difficulties which can arise prior to the making of a parental order, as discussed above. Furthermore, it should be recalled that the Report of the Commission on Assisted Human Reproduction recommended by a majority in 2005 that the commissioning parents should be presumed to be the legal parents of any child born through surrogacy. Legislating for pre-conception orders to confer legal parental status on the commissioning parents from the moment of the child’s birth would, therefore, be in keeping with this recommendation.

Whatever legislative approach is ultimately undertaken, it is to be hoped that it will occur without unnecessary delay. As O’Donnell J. stated in the MR case, “[t]he absence of legislation does not mean an absence of assisted reproduction; rather it means an absence of regulation.” The families involved in the surrogacy process require and deserve security. In particular, the children born through the process require protection so as to avoid the “legal half-world” into which they are currently born and so it is to be hoped that legislation will be forthcoming.

Legislating for Surrogacy.

On Repealing the 8th Amendment. #repealthe8th

Our regular contributor Mairead Enright spoke at the recent ‘Repeal the 8th’ conference in Dublin last Saturday. A video of her presentation is below. You can find other videos of the day (by Paula Geraghty) here.

To join Lawyers for Choice, email lawyers4choice@gmail.com.

To write to your TD on the issue see here.

To sign the Repeal the 8th petition see here.

For details of the March for Choice see here.

 

The effects of the 8th Amendment range far beyond abortion. The Amendment has come to have consequences for all cases of maternal-foetal conflict.

For example, it may be that prevailing interpretations of the constitution entail that:

  • A living but unviable foetus (fatal foetal abnormality or inevitable miscarriage) can evidently assert the constitutional right to life against the mother, even at grave cost to the woman’s health.
  • It may be that the unborn has a right to an opportunity to be born alive, such that doctors are required to
    • attempt to sustain a second semester pregnancy until viability, even at grave cost to the mother’s mental and physical health.
    • favour an attempted early live birth even where this is not in the best interests of woman or child.
  •  The mother’s consent to medical treatment – as an offshoot of her constitutional rights to privacy, dignity and bodily integrity – plays almost no constitutional role in cases of maternal/foetal conflict. Thus women can be subjected to treatment in the form of Caesarean section, induced labour and so on, without very much regard for their best interests, or their refusal of medical treatment. There is more than an echo of the past justification of symphysiotomy here.

There is no legislation or reported judgment, which adequately clarifies the law as it applies to any of these scenarios. Very little has been published to explain the ethical and legal underpinnings of likely treatment options. At the very least we should investigate opportunities for specific legislation on maternity care in cases of maternal-foetal conflict.

The presence of the 8th Amendment leads to the mischaracterization of certain medical issues which can occur during pregnancy as ‘abortion adjacent’, when they are nothing of the sort.  The 8th Amendment requires us to misinterpret and misconstrue women’s valid treatment needs.

The 8th Amendment is poorly designed. It has strayed away from the people’s intention, and ground to a halt. When a constitutional provision becomes mechanically unworkable in this way, repeal and replacement are standard responses.

The 8th Amendment is an unusual constitutional provision because – through the Protection of Life During Pregnancy Act 2013 and practice guidelines for the medical professions – it is regularly interpreted and applied by agents other than the courts. Indeed, we might say that doctors are the primary interpreters of the 8th Amendment.

Over the course of thirty years, we would have expected the courts to flesh out the text of the Amendment much more than has already been done. However, the courts very rarely have the opportunity to consider the Amendment because it is often impossible for a pregnant woman – especially if she is ill or distressed – to bring her case to the superior courts in good time, and because it will be very difficult for her to assert standing before the courts if her pregnancy is already terminated. The criminalization of abortion poses another obstacle to the emergence of suitable litigation. Most of our constitutional jurisprudence on abortion derives from (i) cases brought by third parties such as S.P.U.C. and (ii) unusual cases of young women in the care of the state.

Because the courts so rarely have the chance to consider the 8th Amendment:

  • Our abortion jurisprudence is very vague and very thin. The X case (which concerns a raped, suicidal, teenage girl in early pregnancy) has been stretched to apply to very different kinds of case.
  • Doctors must guess at the application of the X case to a wide range of scenarios which have never been considered by any court.
  • The 8th Amendment has fossilized. This is because doctors are not judges. They do not have the authority to develop new law. They have, naturally, been unduly cautious and the law has stagnated. The Supreme Court has repeatedly expressed that the Constitution should adapt to the developing needs of the people, but the 8th Amendment is no longer able to do so.

 When a constitutional provision is placed beyond workable interpretation, we are entitled to remove that provision and start again. There are plenty of precedents for this course of action. For example:

  • The 1992 referendum which secured the right to information and the right to travel was a response to judicial restriction of those rights by virtue of their interpretation of the 8th Amendment.
  • The Citizenship referendum in 2003 was, in part, a response to judicial decision-making on the rights of Irish-born children whose parents were vulnerable to deportation.
  • The recent children’s rights referendum was, in part, a response to judicial interpretations of the constitutional rights of the marital family.
  • The forthcoming marriage equality referendum is designed to respond to difficulties with the interpretation of the constitutional provisions on marriage.

A Referendum on the 8th Amendment is an opportunity to bring the Constitution into line with prevailing social values around pregnant women’s medical care.

 The Constitution is the place for broad statements of shared communal values, which guide the courts in their interpretation of the law, and in their development of constitutional rights.  It is not the place for tests, rules and regulations.

If we remove the 8th Amendment, the right to life will remain, and it will be possible to maintain strong  (but not unworkably absolute) standards of respect for unborn human life. In addition, it will be possible for certain of women’s constitutional rights, which have been limited by the 8th Amendment, to bloom in the gap it will leave. There is a strong argument for adding an expressly enumerated right to bodily integrity to the Constitution. The right already exists as an unenumerated right. Explicitly including it in the Constitution, in the context of a repeal of the 8th Amendment, would:

  • Firmly guide the Courts in future cases of maternal-foetal conflict, and prevent the re-introduction of an 8th Amendment style interpretation ‘by the back door’.
  • Incentivise the future development of human rights oriented medical practice in Ireland.
On Repealing the 8th Amendment. #repealthe8th

Legal observers (and other volunteers) needed for the March for Choice.

The March for Choice will see pro-choice activists, organisations and individuals from around the country come together in their thousands in Dublin on Saturday 27th September. The organisers need people to help out in the lead up to the march, and on the day itself. A range of volunteer positions are available, but our readers  may be especially interested in acting as legal observers – to monitor any interactions which may occur between the Gardai and those attending the march.  Legal observers must attend a training session in the city centre on the morning of Saturday, 27th September.

Further details here.

Legal observers (and other volunteers) needed for the March for Choice.

Expertise on Abortion in Ireland

As coverage of the case of a young woman who was refused an abortion under the Protection of Life During Pregnancy Act 2013 continues in Irish newspapers and on radio and television, we thought it might be useful to journalists and producers to outline some of the expertise available from the HRinI contributors. The full list of contributors is here, and people whose research engages directly with the relevant legal issues are listed below.

Claire Murray: consent to medical treatment, medical law, the Act

Fiona de Londras: the constitutional position, the Act, abortion, international human rights law

Liam Thornton: asylum & immigration, travel restrictions, international human rights law

Máiréad Enright: the constitution position, the Act, abortion, international human rights law

Sinéad Ring: trauma, rape

 

Expertise on Abortion in Ireland

Northern/Irish Feminist Judgments Project Website Launched.

02-Carey-YoungThe Irish and Northern Irish Feminist Judgments Project begins today with the launch of a new website: www.feministjudging.ie.
A collective of academics and practitioners based in Ireland and abroad will rewrite 30 important legal judgments, which they believe would have been decided differently if a feminist perspective had been brought to bear on the case. The cases selected will cover constitutional law, child and family law, reproductive rights, property law, criminal law, immigration law and religious freedom. By rethinking the process of judgment, the project will demonstrate the influence which judges have had on women’s lives, and on the politics of identity in Ireland and Northern Ireland.
The project will run from October 2014 to September 2015. A series of workshops will be held throughout Ireland in the autumn and in the spring, at which draft judgments will be presented for discussion by academics, practitioners and activists. A book, collating the feminist judgments produced during the project, will be published by Hart in 2016. For further details, email irishfeministjudge@gmail.com.
The project is led by Dr. Aoife O’Donoghue (University of Durham), Dr. Julie McCandless (London School of Economics) and Mairead Enright (University of Kent)
You can follow the project on twitter at @irishfjp and on facebook at https://www.facebook.com/irishfjp
Northern/Irish Feminist Judgments Project Website Launched.

Join Us In The Human Rights “Green Room”

On Monday 14 July the Irish Council for Civil Liberties (ICCL) will host a Human Rights “Green Room” in Dublin to follow live Ireland’s Appearance Before the UN Human Rights Committee in Geneva.

Next Monday afternoon, Minister for Justice Frances Fitzgerald TD will be defending Ireland’s record on civil and political rights before the UN Human Rights Committee in Geneva. Join us in our Human Rights “Green Room” to watch the screening live in Dublin. Colleagues from a wide variety of civil society organisations that have provided expert evidence to the UN Human Rights Committee will be present and the event will be a “media hub” for commentators and journalists.

Proceedings from Geneva will be live tweeted at #ICCPR

Date: Monday 14th July 2014
Time: 2pm – 5pm
The Human Rights “Green Room”, Goldsmith’s Hall, Radisson Blu Hotel, Golden Lane, Dublin 2

Participants are welcome to drop in from 1.15pm to watch the live feed from the UN in Geneva on the big screen in the Green Room.

On 14th July 2014, Ireland will be examined for the fourth time by the UN Human Rights Committee on issues such as: conditions in Irish prisons, the right to non-discrimination for older people, people with disabilities, in education and for members of the LGBTI community; recognition of Traveller ethnicity; and effective redress mechanisms for victims of institutional and other abuse such as the former residents of the Magdalene Laundries and Survivors of Symphysiotomy.

Join us to hear first hand what Minister Fitzgerald will say in response to the Committee’s questions.

RSVP to rightsnow@iccl.ie  or 01 7994504

For more information about the ICCPR process, click HERE

Advance media enquiries about the media hub at the Green Room should be directed to:

Walter Jayawardene, Communications Manager, Irish Council for Civil Liberties T: +353 87 9981574    E: walter.jayawardene@iccl.ie


The ICCL is especially grateful to the members of the ICCPR Steering Group:

Age Action Ireland
Educate Together
Free Legal Advice Centres
Gay and Lesbian Equality Network
Immigrant Council of Ireland
Inclusion Ireland
Irish Centre for Human Rights (ICHR) (NUI Galway)
Irish Council for Civil Liberties
Irish Family Planning Association
Irish Penal Reform Trust
Irish Traveller Movement
Survivors of Symphysiotomy (SOS)
Transgender Equality Network

Join Us In The Human Rights “Green Room”