Oral Hearings

Family Issues: Presentations.

Wednesday, 20 April 2005

The Joint Committee met at 10.30 a.m.

MEMBERS PRESENT:
Deputy B. Andrews,
Senator B. Daly,
Deputy J. Breen,
Senator J. Dardis,
Deputy P. McCormack,
Senator M. Finucane,
Deputy A. Morgan,
Senator A. Ormonde,
Deputy J. O’Sullivan,
Senator J. Tuffy.
Deputy P. Power,

DEPUTY D. O’DONOVAN IN THE CHAIR.

The joint committee met in private session until 10.55 a.m.

Family Issues: Presentations.

Chairman: The first item on the agenda is the presentation by the Women’s Council represented by Ms Geraldine Luddy, director, Dr. Cecily Kelleher, chairwoman and Ms Alessandra Fantini, policy officer. The delegation is welcome.

I remind witnesses that members have absolute privilege but that same privilege does not extend to witnesses appearing before the committee. I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

We have got the presentation, which is excellent. Rather than rehash the entire presentation perhaps you could synopsise for the committee the important aspects you wish to raise with us on this issue, following which we can have a question and answer session. I invite the delegation to make a presentation of approximately six to eight minutes.

Ms Geraldine Luddy: I will outline briefly the synopsis for the committee following which we will accept questions.

In regard to family rights the Irish Constitution reflects widely accepted views of the role of women and men in society in post-independent Ireland. It is generally agreed that these views were influenced by the cultural ethos of our time. However, social practice is now broadly divergent from that envisaged in the Constitution as clearly evidenced by current statistics on marital status, living arrangements and women working outside of the home. While some legal experts have stated that constitutional change is unwarranted due to the courts’ capacity to interpret the Constitution in an historically sensitive manner, the State and especially the Supreme Court have so far refused to read the Constitution in such a way in relation to the articles on the family and continue to understand its provision in a literal fashion. These provisions which adopt a biologically deterministic approach to women and men’s role and proclaim marriage as the only valid family formation have had negative repercussions not only for women and children but also for men.

The belief that caring duties should be the responsibility of women has had a detrimental effect on the emotional well being of both women and men in their role of parents and also has been found to especially affect the physical and mental health of mothers. The definition of family as implied in our Constitution is that based on marriage and it no longer reflects the reality of society. Recent statistics clearly indicate a changed family landscape. I will not go through all the various statistics as I am sure the committee is well aware of them.

The Women’s Health Council believes the family should be seen in terms of what it does, that is, caring, and the kind of relationships and values that compromise it, rather than seeing the family in terms of structure or a group of people who are defined by a legal relationship. If one agrees that the main purpose of family life is to care for close personal relationships and especially children then the State must encompass all family forms that carry out this task without discrimination on the basis of which they were constituted. The current constitutional and legal situation does not reflect the change in family formation. They have, instead, established a hierarchy among different kinds of family. This hierarchy discriminates against non-marriage based families in both tangible and not so tangible ways.

Real discrimination occurs in terms of taxation, legal recognition and social policy measures despite the fact the State is capable of recognising non-marital family units for the purpose of social welfare entitlements or denying social welfare entitlements. Discrimination also affects members of non-marriage based families on an emotional and psychological basis and lone parents have been found to be at a greater risk of experiencing mental health problems than any other type of parent. It is important to state also that children suffer from this hierarchy as they are well capable of evaluating whether their family is different from the model promoted by public policy and consent. They translate this convert discrimination into a negative perception of their family and themselves.

The Women’s Health Council thinks it is very important that the difference in family forms is not perceived and understood as deficit, particularly by the children. International studies comparing parental outcome for families formed in different ways have found it is the quality of parenting rather than how the family came into being that has most influenced child development.

Legal and social provisions should be updated to end this official discrimination of families. A new provision should acknowledge and reflect the fundamental role family life plays in society, regardless of marital status, in order that it may adequately cater for the needs of all families within a contemporary context.

On whether gay couples should be allowed to marry, one of the questions posed in the joint committee’s correspondence, the Women’s Health Council believes being able to marry would reduce the inequality experienced by gay couples and go some way towards eliminating discrimination on the basis of sexual orientation in the realm of family formation. Equally, it would not be as satisfactory a solution as the legal position of gay marriages but the introduction of civil partnerships for some same sex couples would be a positive stepping stone towards equality. The case for establishment of civil partnerships of same sex couples has been comprehensively argued by two other Government agencies, the Equality Authority and the National Economic and Social Forum.

On the Constitution’s reference to women’s life within the home, the domestic role envisaged for women in the Constitution has been described as dated, patriarchal and offensive. De Valera defended these constitutional provisions on the basis of their protective aim. However, his intentions did not ever translate into practice in regard to tax or social policy measures, rendering them of no real assistance to women working in the home. Furthermore, the constitutional vision of a clearly defined and confined gender role was based on a biologically deterministic understanding of women and men. That vision was never fully accurate but social and economic changes in the past decade have further curtailed its relevance to society.

The constitutionally envisaged model family, based on a male breadwinner, is now hindering the ability of both women and men to embrace fully their many social roles. The expectation that women will remain in the home to care for their families on a full-time basis has also created a chronic under-provision of child care services. During a national public consultation process the reconciliation of work and family life was an issue more for women than for men because of the difficulty in balancing their many social roles. On the other hand, men, especially fathers, have also suffered at the hands of this descriptive family policy practice based on gender stereotypes. The definition of women as carers has underpinned the marginalisation of men as emotionally significant in their children’s lives as well as discrimination in regard to social welfare entitlements as carers.

The Women’s Health Council proposes that Article 41.2.1o should be altered to read:

The State recognises that family life gives to society a support without which the common good cannot be achieved. The State endeavours to support caring for others within the home.

The revised policy framework that would stem from such a constitutional provision would enable both women and men to embrace more fully their social role as carers and workers.

On the issue of whether the natural mother or the natural father should have expressed constitutional protection, the Women’s Health Council believes the common understanding of the definition of “natural mother” or “natural father” could limit the rights of adoptive parents, parents in reconstituted families and women and men who become parents through the increasing use of assisted human reproduction procedures in which biological and social parenthood may be dissociated. Their children’s rights may also be negatively affected. Great care should be taken in assigning primacy to the biological function of parenthood over its social one.

Chairman: I thank Ms Luddy. It is interesting that the Women’s Health Council formulated a particular amendment because most groups shy away from taking that risk. It also helps the joint committee in its deliberations.

The position of the Women’s Health Council is clear but on the question of whether gay couples should be allowed to marry, it mentions that the NESC and the Equality Authority have suggested establishing civil partnerships. Would the council be of the view that the Bill published by Senator David Norris would go sufficiently far to meet its requirements or should we go the extra mile of attempting to legalise gay and lesbian marriages?

Ms Alessandra Fantini: The ideal would be not to discriminate against family formation and relationships on the basis of sexual orientation. If the gold standard of relationships is to remain marriage, it should apply to all relationships. Also, problems will arise regarding the freedom of movement of individuals in the European Union in so far as the Dutch and Spanish will soon allow gay marriages. It will be difficult, therefore, to legislate for a situation in which citizens of certain EU countries travelling in other EU countries would lose their rights on the basis of their residence.

Chairman: Would the council suggest that the Constitution, as currently framed, does not cater for this? That is something I believe could not be dealt with by legislation; we would have to have a referendum on the matter. Do the representatives believe Irish society, despite all our progress in the past 20 or 25 years, would be ready for such a referendum?

Dr. Cecily Kelleher: The appropriate approach would be to have a referendum that encompasses the broader recommendations we make because it is clear we are talking not just about the position of gay and lesbian couples but about a variety of other family relationships. We are calling for a change in the Constitution but in broader terms. That would be more acceptable to our society.

Deputy McCormack: I welcome the deputation and the presentation. I appreciate the opportunity given to the joint committee to examine the amendment the Women’s Health Council has proposed in its submission but how can we link the council’s genuine concerns about women’s health with our deliberations on the Constitution? For example, Hayes’s argument that children are more than able to evaluate whether their family is different from the model promoted by public consent is quoted on page 8 of the submission. Irrespective of what we insert in the Constitution, children will be able to evaluate, regardless of their family structure, whether they are different. Would inserting an amendment in the Constitution alter their ability to do so? I am trying to understand how alterations to the Constitution can be linked to the role of the Women’s Health Council.

Dr. Kelleher: It is in the context of children experiencing discrimination in the type of family in which they live. We make the point that if the Constitution reflects the kind of society in which we live, it does not discriminate against any particular group. It is not just a matter of perceiving that one is different but that there is a disadvantage attached to that difference.

The Women’s Health Council is looking at the matter from the perspective of what best promotes health and well-being for all demographic groups. The role of women, therefore, has to be linked in terms of the role of men and children. That is the position we are adopting.

Deputy McCormack: I know from my dealings with members of the public over many years that they have only a slight knowledge of what is in the Constitution. People get on with their lives and do not read the Constitution every day; very few people even have a copy of it. It is stretching reality to envisage that matters in the Constitution can be linked to health.

Dr. Kelleher: All great social contracts between citizens such as a document like this are inherently part of the fabric of our daily lives irrespective of whether we read it. That is one aspect. Health as a resource and a value is profoundly determined by the social fabric of society and that, therefore, is a reason for the Constitution to reflect as fully as possible the reality of life in our society.

Chairman: I accept Deputy’s McCormack’s point concerning the ordinary citizen’s knowledge of the Constitution, but when an issue arises that would affect his rights, the Constitution is quickly invoked.

Deputy O’Sullivan: I welcome the delegation and thank the representatives for a clear and succinct presentation and for the document they sent earlier. It is useful to have the issues set out as clearly as they are in that document.

I want to pursue the question of what kinds of families, in the context of a broadened definition of the family in the Constitution, will be protected and what kind of protection will be given. In the section on the rights of natural mothers and natural fathers, the council refers rightly to the issue of adoption. I want to pursue the other aspect of the rights of natural mothers and natural fathers, particularly natural fathers who may want to be closely involved in the raising of their child but for one reason or another that may be made difficult for them. The Constitution defines marriage as a long-term relationship, even with the introduction of divorce. Should the Constitution promote long-term families, so to speak? There are many families where the make-up of its members change. Women may have a number of partners and may have children with a number of partners. To what extent should the Constitution be in the business of trying to promote a more long-term stable situation for children and families? That links to the issue of natural fathers. I would like if one of the representatives could take those two questions together.

Dr. Kelleher: We will deal with the specific operational points first.

Ms Fantini: The issue of how complicated it is to limit the technical definition of what unit represents a family was highlighted and addressing that will require considerable thought and effort. If one takes the approach, as Professor Lynch outlined, of the notion of who cares, of who are the people who perform the caring for children or other family members, it could help in putting together a framework in this regard. That might help us in formulating a framework to ascertain those who constitute a family and those who do not.

In relation to natural fathers, going back to the way the Constitution has enshrined a particular type of family, their rights in a sense are not being catered for. By changing that and making the idea of a family more encompassing, natural fathers would automatically get greater recognition and they would be catered for in that sense. Family life should be protected and there should be social policies that make it possible for families to endure stresses and provide child care so that gender roles can be balanced, children can be well looked after and there can be a work-family balance. There are all sorts of social and financial polices that can be delivered to encourage long-lasting relationships. However, from the point of view of legally differentiating between kinds of families, that is the part of the Constitution where family life should be protected and through policies, the aim of which is to protect the families in practical ways, perhaps families could be safeguarded in terms of ensuring they are based on long-lasting balanced relationships that would last in the future.

Deputy O’Sullivan: Ms Fantini referred to duties as well as rights, which is important.

Ms Fantini: Absolutely.

Ms Luddy: I agree with Ms Fantini. It is difficult to devise a wording that would facilitate the Deputy’s wish in respect of the Constitution but it is important that we do not exclude people. That is one of the key issues. The Constitution excludes certain family forms. We would like to see that changed.

In terms of the word “natural”, it is my understanding but I could be wrong that when the Deputy said “natural” she meant “biological”. Difficulties can arise in that regard. The Deputy referred to a case involving the biological father but it could be the case that the biological father may not have seen the child for ten or 20 years and the social parent, the man fathering the child is not the biological father. We need to be careful about the terminology used in the Constitution, in particular in future examples concerning human reproduction. There are various definitions and relationships where there is a blur between biological and social parenthood.

Senator Dardis: I congratulate the council on its submission. It is one of the more succinct and well argued ones we have received. I hope the representatives do not expect us to read the entire bibliography they have supplied. They have done a great deal of research.

To return to an earlier point, the council lays great emphasis on the family. We accept there are different definitions of the family and not only the narrow matrimonial definition. There is the issue of cohabitees and representatives mentioned marriage and civil partnership for single sex unions. Leaving aside whether there should be a marriage or civil partnership because we can deal with that under law, the council’s proposed wording in respect of Article 41.2.1 is as follows:

The state recognises that family life gives to society a support without which the common good cannot be achieved. The state endeavours to support caring for others within the home.

We need to explore whether cohabitees fit into that provision and how they would do so. I would say they should - that is my perspective. Does that provision cover them?

The other point that needs to be made is that much reference has been made to the social background to the 1937 document. I will not say fashion changes but norms changes. People could be doing this exercise in 70 years’ time. Because of the norms of our time, we insert certain provisions in the Constitution which in 50 years’ time would begin to appear a little bit out of date. From a practical point of view, I do not know how one could deal with such changes other than by reducing the provisions to very simple principles and statements of rights. Perhaps that can be done by reference to the European Convention on Human Rights or some other convention.

I also note the council has asked, as have many other groups, for the rights of children to be affirmed, to which I think Mr. Luddy did not refer in her presentation.

On the issue of the biological function and natural parents, several delegations made the point that the rights of each of the parents needs to be protected. The rebuttal to that might be that one parent has had absolutely no input, a second relationship has formed and the child is comfortable and very well loved in the second relationship. The issue is how to deal with that situation. The representatives have been novel in their presentation in referring to the social aspect rather than the biological aspect. Could they tease out that social dimension?

Chairman: Senators Ormonde and Daly have questions, therefore, I ask the representatives to respond to all the questions together at the end.

Senator Ormonde: I thank the representatives. There is a great deal of reading and reflective thinking in the submission. It reflects a caring approach. The group seeks an amendment to the Constitution which would provide guarantees and respect for family life. I am not convinced this would happen as a result of amending the Constitution. Perhaps we should start another way and examine updating our legislation and our education system with regard to the rights and responsibilities of people who bring children into the world. We are talking about the rights of children and how they can be protected.

No matter how much we change the Constitution, we might not get this right. I am concerned about diluting the Constitution to reflect new concepts which are evident in today’s society. The issue is legislation versus amendment of the Constitution. I am more concerned that we update our legislation. We are doing that through the Law Reform Commission’s proposals relating to cohabitees, maintenance, property rights and so forth. Should we consider thoroughly updating the legislation first and getting that right, before diluting the Constitution, which I believe might happen? That would dilute the fabric of society. While I do not condemn any way of life or family life, I am concerned that things might change again in future years.

Senator Daly: I welcome the delegation and thank its members for the presentation. I wish to discuss the issue of children in same sex partnerships. What has the delegation’s research shown with regard to the numbers of children being reared by same sex partners? I raised the issue of child poverty on a number of occasions with various delegations. The committee was given evidence yesterday that the gap is widening where child poverty is concerned. Would the new arrangement mentioned by the delegation exacerbate or help alleviate that situation? Second, why does the delegation believe that a referendum along these lines would be carried? It is more than likely that, in the present climate, such a referendum would be rejected. How would the delegation influence the public in the referendum campaign to vote as it suggests?

Chairman: On the same issue, some same sex couples have the ambition to adopt children. What is the delegation’s views on that?

Ms Luddy: I will deal with the questions regarding children in same sex relationships. There has been no research to date to show that living in same sex relationships has any detrimental effects on the child’s welfare. As we stated in the submission, it has been proven that the quality of the parenting has had a significant impact on children’s development, whether that is in a lone parent, marriage, cohabitees or same sex situation. We do not have evidence which proves that a child living with a gay or lesbian couple is any worse off than a child living in a marriage.

Senator Daly: Does the organisation have any research on the numbers of children living in that type of relationship in Ireland?

Ms Fantini: We do not have numbers at present because those data are not being collected in Ireland. International research is mentioned in the references. Irish research did not specify same sex couples because that information is obviously hard to access. They could be already existing within reconstituted families in the sense that they might not have adopted a child but one of the two partners might be separated or divorced from a previous heterosexual relationship. They exist but there are no data on them.

Irish research by McKeown et al shows that if one removes the discrimination or the socioeconomic circumstances and just looks at the dynamics within the family, the children are not worse off. Of course, they might be worse off if they are experiencing external factors that might render their experiences more negative. However, with regard to the family unit and child development in the context of the parents raising them, these depend on the quality of the caring relationship as opposed to other factors.

There were some questions about the changing of social mores and how something might be fashionable at one stage and is not fashionable later. That is certainly the case. What has not changed, however, is the importance of the family in Irish society. It was important in 1922 and 1937 and it is important today. A way of overcoming the fear of changing social mores to make cohabitation popular and acceptable or unpopular and unacceptable is the fact that the family will always remain the important factor and we should focus on that.

Chairman: I understand what you are saying but the family as enunciated in the Constitution refers to a family based on marriage, that is, a mother, father and children. It does not take into account cohabitees, same sex couples or single parents. In other words, the family as mentioned in the Constitution is narrowly interpreted, even by the courts. Do you believe the Constitution must be changed in that regard?

Dr. Kelleher: I will respond to that because it relates to all the contributions. We are suggesting the principle of simplifying the Constitution to reflect as closely as possible a universal reality, which is the family is a caring unit. We do not believe that principle will change either within this society or over time. That ought to be reflected in the Constitution in that way. The removal of the special provision regarding the marriage unit, therefore, allows for a more inclusive approach. This is an inclusive approach which could be carried in the Constitution because it is in the interest of everybody in society.

Chairman: I have read the amendment you drafted. It would encompass the concept of same sex marriages.

Dr. Kelleher: Yes, it could be interpreted that way.

Chairman: Senator Norris, who is a leading campaigner for gay rights, has said, both in his proposed Bill and in private conversation, that what he seeks is recognition and tax equity in terms of income and inheritance taxes. He said they are not interested in going further because one can see the current difficulties with it in America and so forth. Would that not be a flaw in the amendment? Would people not see it as a back door attempt to incorporate gay marriage into the Constitution, which might cause a problem?

Dr. Kelleher: Absolutely. The other point which we have been queried on is that this has to operate in both directions. Clearly, for practical purposes many situations would have to be legislated for, whether or not we change the Constitution. That is the only way to deliver clearly on the interpretation of the provisions. This would have to proceed in parallel. Many of the points that are being raised are obviously about very practical things.

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