One image coming from the tragic earthquake in Nepal had particular significance for our marriage referendum debate. A photo showed Israeli gay couples carrying their babies after they had been airlifted to safety. In Israel, the law restricts surrogacy to male-female parents. So a commercial surrogacy provider brings impoverished Indian women over to Nepal to carry the babies for Israeli gay couples. The human eggs are harvested from women in South Africa and elsewhere. None of these babies will ever know their mothers.
Can we make sure that any surrogacy in Ireland will be restricted to male-female couples, if the Government acts on its intention to legalise surrogacy? Sadly, the Government’s statement of intent in this area shows no interest in ensuring that such children have a mother and father in their lives. And significantly, the view of the Referendum Commission is that, among other things, a law restricting surrogacy to father-mother couples would be “not impossible, but difficult to imagine” in the event of a Yes vote. That’s because same-sex married couples will have the same constitutional right to found a family as heterosexual married couples. And, perhaps partly due to the influence of American funding, it would be difficult to find a children’s rights charity who would tell a court that it is preferable for a child to have a mother and father. Bizarre, but sadly too true.
A Yes vote affects adoption also. Up to recently, general eligibility to apply to adopt was confined to married couples or a single relative of the child. Single people, including gay people, could adopt in particular circumstances. While the best interests of a child are generally best served by having a mother and father, the Government recently abolished any special preference for married couples or unmarried male-female couples. There was very little consultation about this change. Here again, a Yes vote would hobble the ability of the Dáil and Seanad to insist on a preference for mothers and fathers, because of a certain notion of equality on which same-sex married couples could rely.
So much has been made of the term “equality” in this referendum debate, but where is the equality for children in all this change? The basic need of a father and mother is to be denied to some with the full authority of the State and the backing of the Constitution.
A No vote is the only way to send the Government back to the drawing board. To insist on a better balance between legal recognition for same-sex couples and the rights of children to have a father and mother in their lives whenever humanly possible. As things stand, Civil Partnership fully recognises same-sex relationships and gives social welfare, pension and tax-free inheritance rights, similar to married couples, to gay people. It may be that certain things could be improved – for example more certainty about next-of-kin rights for same sex couples.
In any event, a No vote won’t undermine any existing rights, and it should not be seen as a rejection of gay people. It will, however, force the Government to reconsider in what circumstances a child can be brought into the world using a donated sperm, or a donated egg and surrogate mother. Since a donor sperm or egg means that a child loses one of his or her genetic parents, we should at least be ensuring that such children get to have a mother and father in their lives. Only a No vote allows this.
The controversy over Asher’s bakery presents another possible consequence of a Yes vote. Say a teacher wants to explain to children that, with love and respect for everyone, it is good for children to be brought up by fathers and mothers. The social science data says this is true – “two biological parents, in a low-conflict marriage” generally leads to the best outcomes for children. Would such a school, or teacher, be in breach of the anti-discrimination legislation? How might such a case be considered in the light of the new status of same-sex marriage as the “natural, primary and fundamental unit group of society”? Won’t all this have a chilling effect on teachers and schools?
Senator Feargal Quinn and myself tabled amendments to the Referendum Bill to guarantee the preference for fathers and mothers in adoption and assisted reproduction matters, in the context of same-sex marriage. We also sought amendments that would ensure that our constitutional protections for freedom of belief and conscience would be unaffected. The Government was not interested. Its strategy has been to play up the emotion and to dismiss rational concerns. The very use of the term “marriage equality” on the ballot paper is designed to make voters think they are anti-equality if they’re leaning towards a No.
But this is not a referendum on how we feel about gay people. It’s about whether marriage should remain that institution we’ve always had to unite children with their biological fathers and mothers.
In 2010, respect for gay people and their relationships led to Civil Partnership. Now, it’s the turn of children. Concern for their right to a mother and father, whenever that’s possible, means we should vote No.
Rónán Mullen is an Independent Senator