The Gazette 1974

to privacy in regard to her marital relations—but, in a

wider way, by frustrating and making criminal on her

part to effectuate the joint decision of husband and

herself, to avail themselves of a particular contraceptive

method, so as to ensure her life and health, as well as

the integrity, secutiry and well-being of her marriage

and of her family.

Per Budd J. There is no presumption in favour of the

constitutionality of a pre-Constitution Statute. Section

17 was therefore only carried forward if not inconsis-

tent with the Constitution. The construction of the Con-

stitution is essentially a matter for the Courts. It is

not contested that the plaintiff considered her decision

to be the best open for her. Her husband agreed with

her. The State guarantees as far as practicable by its

laws to vindicate the personal rights of the citizen.

What more important personal right could there be in

a citizen than that to determine in marriage his atti-

tude and resolve his mode of life concerning the pro-

creation of children. While "personal rights' 'are not

set out specifically nevertheless in our society, the right

to privacy including that of marital relationship is uni-

versally accepted. S.17 is in conflict with the personal

rights of the citizen as to the guarantee contained in

Article 40, Section 3(1) to respect, defend and vindi-

cate the personal rights of the citizen relative to the

privacy of married life and marital relations.

Per Griffin J. One of the personal rights claimed on

behalf of the plaintiff is the right of privacy in her

marital relations with her husband. The Constitution

does not define the personal rights guaranteed by

Article 40. It was howver pointed out by Kenny J. in

Ryan v. Attorney General

(1965), I.R. at page 313 that

the general guarantee in Article 40(3) extends to rights

not specified in Article 40, and that there are many

personal rights of the citizen which follow from the

Christian and democratic nature of the State which are

not mentioned in Article 40 at all. The Courts have

not attempted to define with exactitude or to make a

list of the rights which may properly be included in

the category of personal rights, but Kenny J. instanced

the rights to bodily integrity and the right to marry.

Inherent in the right to marry is the right of married

persons to establish a home and bring up children.

The right of marital privacy is one of the personal

rights guaranteed by Article 40, Section (3) (1). In

that subsection, the guarantee of the State in its laws

to respect the personal rights of the citizen is not

subject to the limitation of "as far as practicable". In

my opinion, a statute which makes it a criminal offence

for plaintiff or her husband to import or to acquire

possession of contraceptives for use within the marriage

is an unjustifiable invasion of privacy in the conduct

of the most intimate of their personal relationships.

Accordingly Section 17 (3) is inconsistent with the

Constitution.

Per Fitzgerald C.J. (

dissenting

). The right to marry

and the intimate relations between husband and wife

are fundamental rights which existed, and have existed,

in most, if not all, civilised countries for many cen-

turies. These rights were not conferred by the Consti-

tution in this country in 1937. The Constitution goes no

further than to defend and vindicate and protect those

rights from attack.

If Section 17 prohibited the use of contraceptives, it

might reasonably be held to contravene Article 40. The

Section howver does not do so, and, in my opinion, is

not inconsistent with any of the clauses of that Article.

Article 41 of the Constitution

Per Walsh J. It is claimed that Section 17 is in-

consistent with Article 41(1) of the Constitution in

that it violates the inalienable and imprescriptible rights

of the family in a matter which the plaintiff claims is

peculiarly within the province of the family itself. This

Section attempts to frustrate a decision made by the

plaintiff and her husband for the benefit of their

family as a whole, and thereby attacks and fails to

protect the Family in its Constitution. Furthermore it is

claimed that Section 17 is inconsistent with Article

41(2) of the Constitution, in that it fails to recognise

and give due weight to a private family decision of the

plaintiff and her husband touching her life within the

home, and thus endangers the plaintiff's life, and re-

fuses to allow her to live her life within the home.

It is to be noted that Articles 41, 42 and 43 emphati-

cally reject the theory that there are no rights without

law, no rights contrary to law and no rights anterior

to law. They indicate that Justice is placed above the

Law, and acknowledge that Natural Rights or Human

Rights are not created by law, but confirm their exis-

tence and give them protection.

The individual has natural and human rights over

which the State has no authority. The Family as the

natural primary and fundamental unit group of Society

has rights as such which the State cannot control. How-

ever the individual as a member of Society, and the

Family as a unit of Society, have duties and obligations

to consider and respect the common good. As

O'Byrne

stated in

Buckley v. A.-G.

(1950) I.R. 67—the

power of the State to act for the protection of the

common good is not one reserved for the Legislature,

because the decision of the Legislature can always be

reviewed by the Courts. This means in concrete term*

that the Oireachtas is not free unjustifiably to

e n c r o a ch

upon the fundamental rights of individuals or of the

family in the name of the common good—or by act or

omission to abandon or to neglect either the common

good, or the protection or enforcement of the rights of

individual citizens.

In considering Article 41—the plaintiff's most impor-

tant claim—the state of her health is immaterial. The

strong wording of the Article is stressed where the State,

while recognizing the Family as the natural, primary

and fundamental unit group of society, and as a moral

institution possessing inalienable and imprescriptible

rights antecedent and superior to all positive law,

guaranteed to protect it in its constitution and autho-

rity as the necessary basis of social order, and as in-

dispensable to the welfare of the Nation and of the

State. Furthermore, the parents are recognised as the

natural guardians of the children of the family, and

those who have the right to determine how family life

is to be conducted. It is a matter exclusively for the

husband and wife to decide how many children they

wish to have—and the parents have a correlative right

to agree to have no children. But any action on the

part of either husband or wife or of the State to limit

family sizes by endangering or destroying human life

must necessarily not only be an offence against the

common good but also against the guaranteed personal

rights of that human life.

The sexual life of a husband and wife is of necessity

and by its nature an area of particular privacy. If the

husband and wife decide to limit their family or to

avoid heaving children by use of contraceptives this is

a matter peculiarly within the point decision of the

husband and wife, and one into which the State