Senior lawyers take issue with statements of Referendum Commission and McAleese

Campaigners for Yes vote are dismissing potential legal effects of vote with “certainty that is unwarranted” says Shane Murphy Senior Counsel 

Senior lawyers have issued a statement in response to comments made this morning by the Referendum Commission and Mary McAleese.  

Shane Murphy, SC  said:

“It is accepted by both sides that if the referendum is passed, a same sex couple will have the same constitutional rights as a married heterosexual couple including a constitutional right to procreate. However the question of how such a right might be interpreted by the courts and whether it could include donor assisted reproduction (DAHR) or surrogacy or both remains to be seen."

“Today Mary McAleese claimed that the marriage referendum ‘if passed will certainly not create’ a ‘legal or constitutional right to procreation using surrogacy’, adding ‘it is a nonsense to think it could.’ And in recent days Fine Gael have displayed posters stating that the referendum is ‘about love and equality and nothing else’.”

“These statements express a certainty that is unwarranted. They purport to know and to state conclusively how the courts will interpret the effects of the proposed amendment to Article 41 in any future legal challenge or set of circumstances. Predictions made in such unqualified terms are not credible. No one can say with certainty what the full legal effects will be of amending our Constitution to say that the family is “founded” upon the union of two people whatever their sex.”

He continued:

“We know of other situations where the potential legal effects of a constitutional amendment were not immediately foreseen.  For example, who would have predicted that the constitutional amendment giving effect to the Good Friday Agreement would be viewed as fettering the State in matters of asylum and immigration law to the extent that another referendum was held?"

“The stridency of the comments by advocates of a Yes vote is in contrast with the views of the Referendum Commission. On Morning Ireland this morning, the Chair of the Referendum Commission was asked: ‘If the amendment is passed, could the courts decide that the right of male same-sex couples to procreate requires that they have access to surrogacy’. The Chair did not answer that question. Instead he limited himself to restating the uncontentious point ‘the courts have never established the right of a married couple to access fertility services in order to procreate’. This is not surprising when one considers that to date no Irish court has ever been asked to decide whether or not it does.”

Mr Murphy further noted:

“It is also interesting to contrast the absolute terms used by Mary McAleese today with the lengthy analysis given by Dr Andrea Mulligan in the Dublin University Law Journal in 2012. Dr Mulligan, who is understood  to have advised the Lawyers for Yes group on this issue, stated at the time that ‘there is a good case to support the application of the right to procreate to assisted reproduction.’ She went on to say that the question of whether the right was ‘at play’ in the case of surrogacy or donor-assisted human reproduction (DAHR) ‘is more difficult to answer’, but concluded ‘[s]uch situations could conceivably be understood as procreation in the constitutional sense’."

“What Dr Mulligan considered in 2012, and without any reference to the proposed amendment, to be ‘conceivable’, would in the view of many lawyers find further support in the event of an amendment to the constitution extending the right to procreate to same-sex couples who, by the very reason of their being same-sex, could never exercise their right procreate without recourse to DAHR or, in the case of male couples, DAHR and surrogacy combined. As Dr Mulligan further noted ‘Gay men would accordingly have a stronger interest in claiming an expansive right to procreate as their ability to procreate is more likely to be restricted’ by ‘a general prohibition on the use of or payment of surrogate mothers.’ "

"We know from other jurisdictions that the introduction of same-sex marriage increases demand for surrogacy services. If the amendment is passed, any legal claim for an ‘expansive right to procreate’ by a gay married couple could only be strengthened by reason of their new status under an amended Article 41", Shane Murphy concluded.

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