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GAZETTE
A
P
R
IL
1977
At the same time the Government recognised the possible
conflict with the Natural Law theory in the Constitution on
inalienable rights (which I have mentioned earlier) and
have proposed changing the Constitution.
I think the law must change to cater for the needs of
people and must get away from the dogmatic shibboleths
enshrined in the Constitution. For this reason, I think
Articles 41 and 42 must go.
I have now sketched for you the various problems
produced by the concept of illegitimacy in our law but this
paper would be very inadequate if the social dimension
was not considered.
The legal discrimination gives strength and support to
a much larger and more prejudiced social discrimination.
The hypocrisy of Irish society has been well documented
but I think unmarried mothers would form an excellent
case study. It is worth noting that one of the more
progressive bodies here is the Roman Catholic Hierarchy
which came out very strongly against discrimination in
August 1974. There is a great lack of sympathy for the
unmarried mother, and it is no wonder that Irish women
are going to England in growing numbers for abortions
which have been legally available there since 1967. It is
estimated that presently there are about 1,600 abortions of
Irish women per year, compared to 577 in 1971. Such is
the effect of the law's hostility to the single parent.
If the aim of present social and legal attitudes is to
deter and discourage illegitimacy and promiscuity, then
they have signally failed. In 1961, the percentage of
illegitimate births as a percentage of all births was 1.6%.
Today, the corresponding figure is 3.9%. In other words,
the problem of the single parent family has more than
doubled, despite our repressive attitudes. Our conclusion
must be that the law has failed and that the nett result is
unnecessary and un-Christian misery, not only for the
parents, but also, for the innocent children—innocent I
believe, by any criterion. About 70% of all illegitimate
children are placed for adoption, this is a high figure by
European standards where adoptive parents are
frantically looking for Korean and Vietnamese children
suitable for adoption. The other alternatives for an
illegitimate child are to be placed in foster care, the care of
Local Authorities or to be left with his mother.
The tide is obviously running in favour of adoption.
The Minister for Justice, Mr. Cooney, said, during the
passage of the Adoption Bill in 1974, that the good of the
child was not normally served by leaving it with its
mother, and that adoption was the best solution to the
dilemma. While adoption is often the best solution, and
may be preferred by the mother, there is no reason why it
should always be so. The unmarried mother may be just
as capable as a widow, or a widower, at looking after a
child and she almost certainly has as much love for her
child. Surely we should not only improve our Adoption
law, as we have done, but should also end the existing dis-
crimination against the illegitimate child. The law can, in
turn,change social attitudes.
Earlier I criticized the Constitution and its interpreta-
tion by our Courts, in this area, which has heightened dis-
tinctions in the definition of the Family. While I think little
will be done by the Judges to change this, there could be
developments if the Courts looked at the Constitution
from a child-centred position. The Supreme Court in
Nicolau
said the natural parents could look to Article 40,
Section 3 for Constitutional protection, and presumably,
so could the child. Article 40. 3. is the provision in our
Constitution which protects the personal rights of the
3 0
citizen, including such rights as have been implied by the
Courts since Kenny J.'s judgment in the Ryan
fluoridation case in (1965) I.R. at p. 312.
It is not impossible for the Supreme Court to use this
Article as a weapon against discrimination. Likewise the
Supreme Court could interpret Article 40, section I,
which holds all citizens as equal before the law, in a
stronger fashion than it has up to now. The Supreme
Court could draw inspiration from the American ex-
perience in this area, as it has already done in areas like
legal aid, juries and privacy. Since the mid-sixties the
Federal Supreme Court has struck down several statutes
which discriminated against the illegitimate child on the
basis that they were contrary to the Constitution's Equal
Protection Clause.
Perhaps the most instructive example is
Weber v.
Aetna (1972) 406 U.S
where the deceased left four
legitimate and two illegitimate children. The former only
got compensation under Louisiana Workmen's
Compensation laws. The Supreme Court declared the laws
to be unconstitutional. The Court reasoned that the
State's legitimate interest in protecting legitimate family
relationships was not promoted by distinguishing
legitimate from illegitimate children in a compensation
scheme. The Court went on to state that "visiting
condemnation on the head of an infant because of his
parents' irresponsible liaisons beyond the bonds of
marriage is illogical and unjust and contrary to the basic
concept that legal burdens should bear some relationship
to individual responsibility or wrongdoing".
An interesting contrast to the Nicolau Case is provided
in
Stanley
v.
Illinois 405 U.S.
where on the death of their
mother, illegitimate children were taken into care without
any hearing being given to the natural father. The U.S.
Supreme Court held that there was a violation of the due
process of law clause of the Fourteenth Amendment since
an unwed father, like other parents, was entitled to a
hearing on his fitness before his children were taken from
him, the advantage to the State in the convenience of
presuming rather than proving an unwed father's
unfitness being sufficient to justify the refusal of a hearing.
The Court also based its reasoning on the equal
protection caluse.
It may seem hard to imagine that the Irish High and
Supreme Courts would follow the trend of the American
cases. However, our Supreme Court has stated that the
old rule of
stare decisis
is now gone and both Walsh J. in
the McGee case (1974) I.R. 284 and O'Higgins C.J. in the
Legal Aid Case
(State (Healy & Foran) v. D. J. Kennedy
and ors. unrtp. S.C. 22 July 1976)
have cfedared that
constitutional interpretation is not static but can develop
with changing social attitudes. I quote the Chief Justice:
"
rights given by the Constitution must be considered
in accordance with concepts of Prudence, Justice and
Charity which may gradually change or develop as
society changes and develops, and which fall to be
interpreted from time to time in accordance with
prevailing ideas. The Preamble envisages a Constitution
which can absorb or be adapted to such changes. In other
words, the Constitution did not seek to impose for all time
the ideas prevalent or accepted with regard to these
virtues at the time of its enactment." I look forward to our
Judges meeting the challenge in this area.
Despite the progress that judicial activities can make,
in the final analysis the massive and comprehensive
reforms needed can only be undertaken by the
politicians—our legislators. I believe that a new deal for