Children’s interests are of secondary concern in the new Children and Family Relationships Bill, writes Thomas Finegan

The Children and Family Relationships Bill is currently before the Oireachtas. A long and complex piece of legislation, running to 172 sections over 106 pages, it is possibly the most important family law reform in the history of the State. The Bill has already made the headlines and is sure to grab many more over the next few weeks.

The Bill’s importance is due to two factors: its subject matter and its relevance for the forthcoming referendum on Article 41 of the Constitution (the marriage referendum).

The Bill can be subdivided into two broad parts. One part is generally welcome. It attempts to strengthen the legal position of children already in non-marital families. The Bill does this by strengthening the legal connection between the child and any adults who are looking after him or her.

So it grants extensive guardianship, access and custody rights to step-parents, relatives and other persons acting in loco parentis (in the place of parents). It attempts to strengthen the guardianship rights of unmarried fathers over their children. The Bill also imposes a maintenance liability upon a civil partner who is not the biological parent of the dependent child of the relationship (i.e. is the civil partner of the child’s biological mother or father).

Adult-centred
These provisions can rightfully be regarded as child-centred. However, there is another part to the Bill that is very clearly adult-centred.

This is the part that deals with adoption and donor assisted human reproduction (DAHR). It is premised on the idea that there is a general right on behalf of adults to have a child other than by natural means.

So, in relation to DAHR, it is not only married couples who may avail of the service, but female same-sex civil partners, cohabitees, and single women too. In effect, this reform amounts to the law deliberately leaving some children fatherless (in the case of DAHR by female civil partners) or single-parented and fatherless (in the case of DAHR by single women).

By granting cohabiting couples the same right to avail of DAHR as married couples, the Bill sees no benefit to a child having the stability of a married rather than cohabiting mother and father. (Social science is clear that there is a benefit). Further still, by legally endorsing the donation of sperm and eggs to create children, the Bill deliberately denies some children knowledge of and a relationship with one (or even both) of their biological parents.

Minister Leo Varadkar has already indicated that when he introduces his surrogacy legislation later this year he will extend the use of DAHR to male civil partners. A male same-sex couple, of course, can only reproduce if they can rent a womb for nine months. When Minister Varadkar’s reforms transpire, the law will knowingly facilitate some children being deprived of a connection with their birth mother along with being left legally motherless.

The Bill also heralds a radical reform in adoption law. It grants same-sex civil partners the same right to jointly adopt as married couples. The Bill will thus deprive some adopted children of either a mother or a father, and do so by design. The Government argues that single people, including gay persons, can currently adopt and that therefore the proposed reform is far from radical. But the existing right of a single person to adopt is a limited, qualified right – a right to adopt “in the particular circumstances”, as the current law puts it.

The Government’s reforms would grant a same-sex couple exactly the same right to adopt as a married man and woman.

It is of course true that tens of thousands of children grow up in Ireland without either their mother or their father. Yet we see this as regrettable, as a tragic loss. Children have a natural right to be cared for by their parents. When, for whatever reason, neither of the child’s parents can fulfil their duty, the State steps in to replace what that child has lost. This means that an adoptive child has the right to a mother and a father where this is practicable.

By deliberately depriving a child of a mother or a father – when it is perfectly possible not to do so – the State commits an injustice. What reason has the Government for doing this? It is motivated by a disproportionate concern to facilitate adult reproductive wants – it places adult reproductive autonomy above children’s best interests.

Meaning
For the adoption reforms this means that the Government proposes to re-orient adoption law from an exclusively child-centred institution to one which tries to cater for adults’ wants too.  For the DAHR reforms this means that the Government proposes to deliberately deprive children of any real link with their natural parents as well as depriving them of either a legal mother or father, all in order to facilitate the reproductive wants of adults. Children’s interests are a secondary consideration in all of this when in fact they should be of paramount importance.

How is the Bill related to the forthcoming referendum on marriage? If the referendum passes, many of the Bill’s DAHR and adoption provisions will be constitutionalised. This means that no future Oireachtas could amend the law in these areas in order to give expression to a child’s right to both a mother and a father. To do so would have the effect of treating one category of married couple – heterosexual couples – better than another category – homosexual couples. This would contravene the constitutional guarantee of equality.

So if the referendum passes, the Constitution will mandate that children be denied their right to a mother and a father for both adoption law and DAHR law. The Government’s argument that children are not part of the referendum debate is false. It was a curious argument from the outset; Article 41 of the Constitution, which the Government proposes to amend, is, after all, entitled “The Family”.

*Dr Thomas Finegan is on the advisory committee to Mothers and Fathers Matter. He holds a PhD in law, a MA in philosophy, and a degree in theology.