During a debate about the forthcoming Marriage Equality referendum on Sunday’s Marian Finucane Show, Patrick Treacy and Thomas Finnegan claimed (between 6.00 and 12.00 minutes) that a Yes vote in the Marriage Equality Referendum would confer a constitutional right to procreate on married same-sex couples, and that this would make it impossible for the Oireachtas to pass any laws regulating access to surrogacy or donor-assisted human reproduction in the future. Do these central planks of the No campaign’s argument actually conform to the reality of Irish constitutional law, as set out in the Constitution itself and the court decisions interpreting it?
The case law does not support this claim. The courts have not, to date, recognised a right of opposite-sex married couples to unfettered access to assisted human reproduction (AHR) services; and far from claiming that the constitutional protection afforded to the institution of marriage precludes regulation or restriction of access, the courts have repeatedly called on the Oireachtas to enact long-overdue legislation to provide a legal framework regulating AHR. There is a constitutional right to procreate, but the case law is minimal and the scope of the right deriving from that case law is, to date, narrowly drawn. Only two cases have arisen, and in both cases, the party seeking to rely on the right was ultimately unable to exercise it as the restrictions being challenged were found to be proportionate.
The right was established in Murray v Ireland  ILRM 465, where it was conceptualised as a right existing within marriage and referred clearly to natural procreation. The plaintiff couple were serving a life sentence in prison for the murder of a member of the Gardaí. While recognising that they had a constitutional right to procreate within marriage, the Supreme Court rejected their argument that they should be facilitated in exercising this right while in prison. The significance of this outcome in the current context is that the right is not unlimited, and will always be subject to reasonable and proportionate restrictions by the State in the pursuit of legitimate aims. If this is the case for natural procreation, then it is clearly also the case for AHR.
As noted, Murray was concerned solely with natural procreation. Whether the constitutional right to procreate actually extends to a right to access AHR services is open to debate, and case law to date has not clearly established that it does. The best opportunity for the courts to recognise such a right was Roche v Roche  2 IR 321, but the opportunity was not taken. The case (which was a dispute between a separated married couple about the use of frozen embryos left over from successful IVF treatment) focused on the question of whether the embryos enjoyed a constitutional right to life under the Eighth Amendment (Article 40.3.3°). The central finding of the Court was that they did not; the right to procreate was a minor side issue that was completely ignored by four of the five judges, and only mentioned in an isolated obiter dictum passage by the other. Accordingly, it is not sufficient to establish a constitutional right of married couples to access AHR services. Moreover, Roche only addressed IVF treatment using the couple’s own gametes; it did not even consider the question of a supposed “right” to access donor gametes.
The only other case that addressing this issue is MR and DR v An tÁrd Chláraitheoir  IESC 60, which involved a married couple engaging in a surrogacy arrangement with the wife’s sister. The case concerned the question of who the child’s legally recognised parents would be; again, it did not establish a constitutional right of married couples to access AHR services. The Court dismissed an argument that the right to procreation acted as a limit on what the law could do in this area (at para. 65). Equally, Article 41 on the Family, which is the provision at issue in the forthcoming referendum, was scarcely mentioned by the majority members of the Court. The clear message of MR is that matters of surrogacy are matters for the Oireachtas and not for the courts – see, for example, the closing words of Denham CJ’s judgment. The preference of the courts is to stay out of these issues and avoid interfering in the judgment of the Oireachtas on complex social matters.
The above analysis shows that it has never been established that opposite-sex married couples have a constitutional right to access assisted human reproductive services, whether IVF, donor-assisted human reproduction or surrogacy. If opposite-sex married couples do not currently have this constitutional right, then it follows that same-sex couples would not have it either in the event that the referendum is passed. Of course, it is possible that a future case might apply the right to procreate in this context; the Irish courts have always held that the Constitution is a living document that falls to be interpreted in light of changing conditions in society. However, even if this occurs, it is clearly not the case that the recognition of a constitutional right to access assisted human reproductive services makes such services immune from legislative regulation or restriction.
The final question is whether a Yes vote might prevent future restrictions being placed on access by same-sex couples to AHR services that do not apply to opposite-sex married couples. While Article 40.1 of the Constitution requires that all citizens be treated equally before the law, and case law has interpreted it as prohibiting arbitrary discrimination, Article 42A.4, which was approved in a referendum in 2012 and is awaiting implementation pending the outcome of a court challenge, requires that legislation shall provide that the best interests of children (and not the marital status of their parents) be the paramount consideration in all decisions regarding guardianship, custody, access and adoption.
The courts addressed a law that restricted access to parenting for a particular class of persons in T O’G v Attorney General  ILRM 61. The case concerned section 5 of the Adoption Act 1974, which provided that a widower could only adopt a child if he had another child already in his custody (whereas no similar restriction applied to widows). The law was struck down as a violation of Article 40.1 as an unreasonable and arbitrary discrimination on the basis that no evidence was available to support the assumption that widowers, on the basis of their gender, were less competent as a class than widows to act as parents. McMahon J stated at pp.64-65:
“Widowers as a class are not less competent than widows to provide for the material needs of children and their exclusion as a class must be based on a belief that a woman by virtue of her sex has an innate capacity for parenthood which is denied to a man and the lack of which renders a man unsuitable as an adopter. This view is not supported by any medical evidence adduced before me … I am satisfied that the proviso to s.5 is founded on an idea of difference in capacity between men and women which has no foundation in fact and the proviso is therefore an unwarranted denial of human equality and repugnant to Article 40.1.”
The implication of this decision in the present context is that the question of whether access to AHR services for same-sex couples could be restricted hinges not on their marital status but on the relevant evidence regarding their parenting capacity. This position would be bolstered by the best interests principle in Article 42A.4. Such a law could not be justified if there was no evidence to support the notion that same-sex couples are inherently less suitable to act as parents than opposite-sex couples. Conversely, the law could potentially be justified if the court could be convinced that sufficient evidence was available to prove that children experience worse outcomes when raised by same-sex rather than opposite-sex couples.
In summary, the claims made on Sunday’s Marian Finucane Show regarding the legal impact of the referendum result on the area of AHR are not supported by the relevant case law. The outcome of the referendum will have no impact in this area. The Oireachtas will remain free to regulate AHR as it sees fit. Article 41 of the Constitution has played almost no role in the case law to date and is therefore of minimal significance to any future constitutional challenges in this area. Article 40.1 mandates equality in the absence of compelling evidence justifying discrimination, which suggests that social science rather than law may be the real consideration in any theoretical attempt to restrict access by same-sex couples to AHR services.
*A more detailed version of this blog that includes supporting case law is available at http://constitutionproject.ie/?p=503.
Dr Conor O’Mahony is a senior lecturer in constitutional law and child law at University College Cork.