Human Rights in Ireland welcomes this guest post on the marriage equality referendum and children’s rights from Prof. Ursula Kilkelly. Ursula is Dean of UCC School of Law and an international expert in rights of the child.
Debate on the proposed constitutional amendment introducing marriage equality into Irish law has been dominated by its potential impact on children. Claims have been made that children have a right to a mother and a father which will be violated by granting same sex couples the right to marry. It has been argued that the extension of marriage to same sex couples will redefine the family under the Constitution with consequences for children’s interests and rights, especially in the creation of families through surrogacy, donor assisted human reproduction (DAHR) and adoption. This post responds to these assertions while arguing that in fact the adoption of marriage equality will strengthen children’s rights in Ireland.
Marriage grants no right to have children, regardless of gender or sexual orientation, and confers no entitlement to create a family through adoption, surrogacy or DAHR. Indeed, family law matters concerning children are determined by what is in the best interests of the child and this will not change with marriage equality. Adoption law requires that the welfare of the child is the paramount consideration and Irish law was recently strengthened so that the child’s best interests are paramount in guardianship, custody and access matters. In addition, the Children and Family Relationships Act 2015 requires the courts to have regard to a range of factors or circumstances relevant to the child and his/her family when making decisions in this area, in a measure that will mean an even greater focus on the child’s interests in such decision-making. Although the 2015 Act includes some measures designed to protect information as to the child’s identity when born through DAHR, comprehensive legislation governing surrogacy and assisted reproduction is long overdue. This is clearly necessary to protect the rights of all children born in this way, whether their parents are married or unmarried, heterosexual or same sex couples. Despite its importance, the need for a comprehensive regulatory and legislative regime for surrogacy and D/AHR exists independently of any constitutional proposal for marriage equality.
International human rights law recognises the importance of parents to children and their development. However, no right to a mother and a father has been recognised either by International or by Irish law. Rather, what international law protects is a child’s right to respect for family life and family relationships. This is particularly evident from the case-law of the European Court of Human Rights given effect in Irish law in the European Convention on Human Rights Act 2003. This makes clear that family life – the existence of close personal ties which can be based on biological and/or social relationships – is worthy of legal protection under Article 8 of the European Convention on Human Rights.
The Convention on the Rights of the Child (CRC)– adopted by Ireland and 192 other states – reflects the importance of the family to children noting in its Preamble that a child ‘should grow up in a family environment, in an atmosphere of happiness, love and understanding’. The CRC refers interchangeably to ‘parents’ and ‘legal guardians’ and makes no reference to ‘marriage’ or ‘married parents’; it does not mention ‘fathers’ at all and refers to ‘mothers’ only in the context of pre and postnatal care. Importantly, the terms ‘family’ and ‘family environment’ are repeatedly mentioned throughout the Convention and, in provisions like Article 5, the CRC adopts an inclusive approach to the family, incorporating a range of family forms including the extended family community. The CRC acknowledges that some children cannot be cared for by their birth or biological parents for a multitude of legitimate reasons (which have nothing to do with the children themselves) and it is implicit in the Convention that no one particular family type can fulfil children’s needs.
The CRC recognises the right of the child as far as possible to know and be cared for by his/her parents, while also providing for the right of the child to maintain contact with them. However, the CRC cannot be used to assert that every child has an absolute right to be raised by his/her birth, biological or genetic parents. Again, the emphasis here is on providing protection for the child’s family relationships, rather than entitling the child to be reared only by his/her biological mother and father. The child’s right to identity (of which genetic identity is just one part) although important, is distinct and separate from the question of who provides the child with family care. What is important to children’s well-being – and frequently to children themselves – is not simply who their biological or birth parents are, but the quality of the care, support and security that they receive in their families in the here and now. Research increasingly shows that the quality of children’s relationships with their carers is what affects children’s lives and life chances.
We know that for various reasons marriage often (although clearly not always) provides the stability that children need to develop and grow with confidence. Its legal protections set it apart from other forms of relationship recognition and registration, including civil partnership which in Ireland ignores children altogether. Civil marriage is an important commitment, undertaken by those who desire formal, public endorsement of their relationship and it confers important legal protections to the parties. While it has been deemed legitimate in certain circumstances to treat a married couple different from an unmarried couple, it is not permissible to discriminate against children on the basis of their parents’ marital status. Although the unjust concept of ‘illegitimacy’ has been abolished, children in non-marital families – including but not limited to children whose parents are a same sex couple – continue to experience inferior treatment under the law. Although the Children and Family Relationships Act 2015 makes it easier for guardians to be appointed to children in such situations, it remains the case that their relationship with their parents does not attract the same legal protection as children born to married parents. It follows therefore that rather than undermine children’s interests and rights, the adoption of marriage equality would represent further progress to equalise the position of all children. In particular, it would offer children the benefit of the legal protections that marriage affords regardless of whether it preceded or succeeded their arrival into the relationship. For children, none of these things matter.
Despite the changing nature of the Irish family, we continue to idolise marriage as if it were the only family form in existence and the only way to provide children with the love and security that they need. The irony is that notwithstanding the pledge of the Irish Constitution, Ireland has never fulfilled its promise to protect the family and our dismal record in the protection of the rights of children is known worldwide. If Ireland were a truly child-friendly state we would ensure by law that all children are entitled without discrimination to respect for their family relationships. We would put in place a legal regime that respects and protects children equally regardless of their different circumstances and the diversity of their families and that protects children’s rights regardless of how they were conceived and to whom. And we would permit those who wish to do so to marry and separately, set the bar high for everyone – regardless of gender or sexual orientation – with the legal responsibility to support, protect and nurture children.