The Gazette 1977

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