THE FUTURE OF REGISTERED PARTNERSHIPS IN THE REPUBLIC OF IRELAND

durham

CUnibig

The Marriage Equality referendum took place on 22nd May and, after a resounding ‘yes’ vote, it appears that the forthcoming introduction of same-sex marriage will spell the end for civil partnership in Ireland. Head 3 of the General Scheme of the Marriage Bill 2015 proposes to repeal Part 7A of the Civil Registration Act 2004, which was only inserted by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Part 7A deals with the registration of civil partnerships, and its repeal will mean that it will no longer be possible to enter into a civil partnership in Ireland post-marriage equality. Head 3 provides that the deletion of Part 7A will not affect any subsisting civil partnership, and Head 9 provides that the parties to such civil partnerships may marry each other, whereupon the subsisting civil partnership shall stand dissolved. The General Scheme’s approach to the future of civil partnership is perhaps unsurprising when considered against the backdrop of the Constitution of Ireland.

Ireland is one of several key jurisdictions to be analysed in July 2015 at a Durham-Cambridge Comparative Family Law conference entitled “The Future of Registered Partnerships”. Organised by Dr Andy Hayward and Dr Jens M. Scherpe, this two-day event will bring together academics, policy-makers and practitioners from over 15 jurisdictions to analyse the future of registered partnership regimes. It will ask whether there is a continuing need for both opposite and same-sex registration regimes in an era where States are gradually opening up marriage to same-sex couples. Are these regimes necessary alternatives to marriage or do they act as a ‘stepping stone’ for the conferral of rights and responsibilities? The significant recent referendum in Ireland offers useful insights on these issues. Indeed, Dr Brian Tobin’s paper will examine the reasons why the Oireachtas proposes to discontinue the registration of civil partnerships in post-marriage equality Ireland.

This fully CPD accredited event will take place on Friday 10th – Saturday 11th July 2015 in the Faculty of Law, Cambridge with a conference dinner at Gonville & Caius College. Registration, booking details and further information are available at www.family2015.info.

THE FUTURE OF REGISTERED PARTNERSHIPS IN THE REPUBLIC OF IRELAND

The Parallels between the Marriage Equality Referendum and the Divorce Referendum

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There are some notable similarities between the upcoming Marriage Equality Referendum and the Divorce Referendum of (almost) two decades ago, and I am not referring to the misleading ‘No’ posters that are again popping up in towns and cities throughout Ireland! In 1995, the Irish people were called on to vote in the Divorce Referendum and the majority (albeit a slim one) voted ‘Yes’ to divorce because they recognised the reality that some marriages can in fact irreparably break down over time and consequently lack the hallmarks of mutual love and commitment commonly associated with marriage. The electorate recognised that, in such circumstances, it would be more pragmatic (and humane) to allow the parties to divorce rather than force them to remain married to each other. The ‘Yes’ vote in the 1995 Divorce Referendum recognised and respected both the reality and diversity of family life in Ireland.

Fast forward two decades to 2015, and once again the Irish people are being called on to vote, this time in the Marriage Equality Referendum, to recognise another reality, the reality that stable gay and lesbian relationships can and do contain the essential features ordinarily associated with marriage. Given that a practically-minded Irish electorate voted almost twenty years ago to alter the Constitution so as to allow those married couples whose relationships lack the essential features of marriage to dissolve their union via divorce, one hopes that an equally pragmatic and fair-minded electorate will vote ‘Yes’ on 22nd May to allow same-sex couples whose relationships are, in essence, marriage-like, to acquire the option of entering into a civil marriage.

Those who argue that embracing marriage equality would be contrary to the Christian understanding of marriage would be wise to remember that Irish marriage law has been uncoupled from Christian morality since the successful outcome of the Divorce Referendum in 1995. This is not just because civil marriage is no longer necessarily ‘for life’, but because Ireland operates a ‘no fault’ divorce regime whereby parties can divorce after a certain time period irrespective of any wrongdoing; Christian doctrine seemingly only permits the parties to a marriage to divorce on grounds of adultery. Thus, Irish marriage law has been progressive for quite some time because, by voting in favour of divorce in 1995, the electorate not only enabled the dissolution of marriage where appropriate, but the ability to divorce was extended beyond the confines of adultery. Similarly, the time has come once again for the Irish people to vote pragmatically. Voting in favour of marriage equality will enable the capacity to marry to be extended beyond a male-female union, and beyond the nebulous Christian understanding, as espoused by Dr. Thomas Finegan in the Irish Times (“Yes campaign is based on entirely flawed premises”, Opinion & Analysis, April 21st), that complementarity of the male-female sexes is what makes marriage special because ‘this is precisely the kind of union oriented towards children and providing those children with both a mother and a father’. Dr. Finegan argues that this is what justifies the State’s support for heterosexual marriage.

Dr. Finegan’s ostensibly child-centred argument for State involvement in heterosexual marriage is not without merit, but it fails to take account of a contemporary child-centred argument in favour of State recognition of, and support for, marriage equality. It is an irrefutable fact of life that same-sex couples are having and raising children. The assisted reproduction provisions of the recently enacted Children and Family Relationships Act 2015 will further facilitate same-sex couples in that regard. There is no credible evidence to suggest that same-sex couples are any less capable than heterosexual couples when it comes to responsible childrearing. Surely the State has a contemporary interest in providing for marriage equality?

A final pragmatic justification for voting ‘Yes’, if one were needed, is the fact that gay and lesbian couples are not seeking to destroy marriage – far from it – they are seeking marriage equality because they wholly respect, and are eager to embrace, all of the positive things that marriage stands for. Voting in favour of marriage equality next month will allow gay and lesbian people who revere the institution of marriage as much as everyone else to finally share in its benefits and protections, and this can only serve to add to and strengthen the institution of marriage.

A pragmatic, compassionate electorate divorced marriage (no pun intended) from Christian doctrine as far back as 1995 in order to acknowledge and provide in law for the reality of marital breakdown in Ireland. Next month, the people of Ireland can do so again and create a more tolerant society where an institution that is revered by all is finally legally available to all.

The Parallels between the Marriage Equality Referendum and the Divorce Referendum

No Democratic Deficit: Children and Family Relationships Bill has had a Lengthy Gestation Period

Those opposed to marriage equality and same-sex parenting are targeting the Children and Family Relationships Bill 2015, claiming that it is being pushed through by the government. This is disingenuous and fails to take account of the lengthy gestation period (no pun intended) that the legislation underwent before being debated by the Houses of the Oireachtas. I know this because I was one of the legal experts invited to Leinster House almost a year ago, on 9th April 2014, to engage in pre-legislative scrutiny of the General Scheme of the Bill with the members of the Oireachtas Joint Committee on Justice, Defence and Equality. It has been claimed that the Bill has not been adequately scrutinised, but indeed it was. I would like to assure the public that the Bill’s provisions were indeed ‘pored over’ by me prior to my arrival at Leinster House, and the advice given by myself and the other medical and legal experts that day during a lengthy consultation helped to identify problems and recommend changes to the legislation to prevent unforeseen consequences for children.

The version of the Bill that the Oireachtas hopes to pass within weeks can most likely be passed in that time because it is the final, legally watertight version of the Bill that has been modified to reflect the child-centred changes recommended by the experts a year ago. The Bill also adheres to best practice worldwide in the context of donor-assisted human reproduction (DAHR). In September 2014 the Minister for Justice and Equality, Frances Fitzgerald TD, made it clear that the expert opinion provided by myself and others had contributed to the careful refinement of the Bill when she stated that she had “listened to the views expressed in the Joint Oireachtas Committee on Justice, Defence and Equality’s consultation.” The Bill certainly cannot be seen as a haphazard attempt at legislating for families.

Adoption

Marriage equality and same-sex parenting opponents disingenuously claim that the Bill demonstrates that the Government does not care whether one is raised by one’s own biological parents or “two men or two women who may or may not be related to you”. Many adopted children nationwide are being       raised perfectly well by men and women biologically unrelated to them, so this preference for biological parents is most disrespectful to the child-rearing capability of all adoptive parents. Further, whether a child is raised by two men or two women who are related or unrelated to the child, an ever-increasing body of evidence shows that same-sex parenting is not detrimental to child welfare.

Donor-Assisted Human Reproduction

The opponents of progress and inclusiveness vehemently claim that “the person who gives you half your identity is apparently not your parent just because the Government says so”, and this is simply untrue because the reason a donor is not treated as the parent of a child conceived via their donated egg or sperm is precisely because the donor intends to donate her/his genetic material to enable a loving, committed couple who would not otherwise be able to have a family to conceive a child. Indeed, to donate is to give something away for a worthy or charitable cause.

The opponents even resort to disinformation, claiming that “in the case of egg-and-sperm donation, two mothers can be registered as the only legal parents, effectively eradicating the concept of genetic parent”. This assertion is highly sensationalist. Where a lesbian couple conceives a child via insemination of donor sperm, the child will have a genetic link to whichever member of the couple is inseminated with the sperm and ultimately gives birth to it, so there is no eradication of the concept of genetic parentage because the birth mother will always be the mother. Further, it is not uncommon for a lesbian couple to use the fertilised embryo of the woman who will not be carrying the child so that, in a sense both women can be genetically related to the child, although the woman in whom such an embryo is implanted will have but an epigenetic connection to the child. Nonetheless, there is certainly no eradication of the concept of genetic parent.

Marriage Equality

Dissatisfied with the denunciation of their arguments surrounding the 2015 Bill, the opponents then decide to launch into an attack on marriage equality because this is really what they take issue with. Objections to the 2015 Bill’s provisions are but a smokescreen for their moral repugnance of, and inherent belief in the wrongness of, gay and lesbian relationships. The opponents of progress and inclusiveness use case law of the European Court of Human Rights to highlight that Ireland is not under an obligation under the European Convention on Human Rights 1950 to introduce same-sex marriage. While this is correct, they neglect to mention that Article 53 of the Convention provides that “it is of course open to Member States to provide for rights more generous than those guaranteed by the Convention” so if the Irish people choose to embrace marriage equality under the Irish Constitution on 22nd May it is no concern of the European Court of Human Rights. This is the reason why countries such as France, England and Wales, Scotland, Spain and Portugal certainly were not acting in breach of the Convention when they legalised marriage equality.

The introduction of the Children and Family Relationships Bill 2015 will be no democratic disaster; it will be the result of painstaking work by our legislators and their advisors that has been on-going since Alan Shatter first introduced the General Scheme of the Bill in January 2014.

No Democratic Deficit: Children and Family Relationships Bill has had a Lengthy Gestation Period