Force of circumstance is one thing, State design is something else entirely, writes Dr Thomas Finegan
IMAGINE the following line of argument. Through force of circumstance, children all across Ireland grow up without either their father or their mother to care for them.
Because of this it is perfectly OK for the State to deliberately deprive a child of either a mother or a father by operation of its laws relating to adoption, surrogacy, and donor-assisted human reproduction. On top of this, anyone who objects to these laws is guilty of demeaning children who are already part of one-parent families.
A ridiculous line of argument, isn’t it? And yet it is exactly the argument being used by yes campaigners in favour of redefining marriage. This is their way of attacking the view that all children deserve the love of a mother and a father where possible.
A child’s right to a mother and a father means this: Where possible and all else being equal, the State should not deliberately deprive a child of either a mother or a father. It is unjust for the State to deliberately leave some children either motherless or fatherless by operation of the law simply in order to advance equality of adult choice. Force of circumstance is one thing, State design is something else entirely.
Yes campaigners don’t accept this. They deny that it is a good thing in itself for a child to have a mother and a father. They think that love from any random combination of adults is good enough. (They are not entirely clear whether love from one adult or two adults is good enough, nor are they clear why two is an important number for parenting rather than three, four, or five.) This isn’t a child-centred view. It’s a view that places adults’ interests in creating children above children’s interests. When it comes to the crunch, yes campaigners don’t want obstacles placed in the way of gay couples starting a family by facilitation of law, especially if those obstacles involve the right of a child to a mother and a father or the right of a child to know their biological parents.
The yes side’s denial of a child’s right to a mother and a father is not based on a belief in children’s equality. It is based on a belief in the freedom of practically any combination of adults to create children via practically any means. These means could include using an egg from one woman and the womb of another woman in order to create a child who, though having a biological mother and a birth mother, will have no social or legal mother. That child may even grow up without knowing anything about her biological mother.
Most people reocognise that this type of arrangement really isn’t attentive to children’s best interests. That’s why the yes campaign is trying very hard to distance this referendum from the issue of children. They are saying that the referendum on marriage has nothing whatsoever to do with children.
As a matter of constitutional law, this is nonsense. If the referendum passes it will in all likelihood be impossible for the Oireachtas to ever again try to vindicate a child’s right to a mother and a father in laws relating to adoption, surrogacy, and donor-assisted human reproduction. If the Oireachtas did attempt this, it would be violating the constitutional guarantee of equality: It would be giving preference to male-female marriages over same-sex marriages.
If the referendum passes it would also mean same-sex couples have a constitutional right to procreate. The courts would be put under considerable pressure to interpret this as including a constitutional right to use gamete donation and surrogacy. If this happens, the Oireachtas would forever have its hands tied. It could not try to prohibit gamete donation to vindicate a child’s right to know and be cared for by their own biological parents. It would also be impossible for the Oireachtas to prohibit surrogacy in order to ensure that children don’t have their relationship with their birth mother unnecessarily split.
If the referendum passes, our Constitution would be denying that, all other things being equal, children deserve the love of a mother and a father over and above the love of any other arbitrarily defined combination of adults. An amended Article 41 would require that children be left motherless or fatherless in the name of adult equality.
Mothers and fathers matter to children. We don’t need to live in an ideal world for the State to reflect this truth in its laws. But we do need to vote no if we are to at least give the Oireachtas a chance to do this and to send a message to Government that it should.
Dr Thomas Finegan is on the advisory committee to Mothers and Fathers Matter
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