Ivana Bacik (Independent)

I welcome the Minister of State, Deputy Calleary. Before the suspension, I was speaking of the major problem that we in the Labour Party see with this Bill, namely, that it does not go far enough. It does not provide for full equality for gay couples because it does not recognise within it the right to marry. I want to emphasise that arguing for a more inclusive definition of marriage is not an attack upon marriage. It has been misinterpreted in that way but it is far from it, because expanding the categories of those entitled to marry in law gives even greater support and protection to the institution of marriage.

One must remember that our definition of marriage has changed over time. Until 1995 in Ireland, which is very recently, marriage was seen as a permanent state from which no divorce was possible. Now, we have introduced divorce and this did not destroy the institution of marriage despite the many doomsday predictions of those who campaigned against the divorce referendum at that time. Similarly, in the US there were legal prohibitions against mixed-race marriages, a concept we would find absolutely abhorrent today. Again, this was something that changed. One day very soon I hope and believe we will see a prohibition on same-sex marriage or rather the failure to include same-sex partners within a definition of marriage as similarly outdated.

That day has already come in a host of other jurisdictions. It is not as if this is something that is a radical or far-fetched proposition. We have seen it in Canada, South Africa and a number of European jurisdictions such as the Netherlands and more recently in Spain and in Portugal, which legalised same-sex marriage in the last few weeks. Both Spain and Portugal are countries we should well look towards as countries with a strong conservative and Catholic tradition, as we have, but which recognised that this was a matter of human rights and of equality and recognised that the right to marry should be an inherent aspect of humanity - a recognition that each and every one of us is capable inherently of entering into loving, committed and intimate relationships and that the law simply needs to recognise that.

Public opinion has moved on. As I said earlier, and others on this side of the House, notably Senator Regan, have already quoted opinion polls that show the majority of people favour legal recognition for same-sex couples and the recognition of marriage. The vast majority of submissions to the Joint Committee on Justice, Equality, Defence and Women's Rights, of which I am a member, argued that the Bill did not go far enough. We should take a lead from other countries and recognise in our legislation not only partnership but also marriage. We are supporting an amendment from Senator Norris which would give some effect to that. As I said, Senator Norris has led the way on this issue for many years. He introduced the first civil partnership Bill in either House in 2004 and it was debated in 2005, a Bill on which I worked with him and which was drafted in a way that was far more inclusive and far-reaching than the current Bill.

Why does all of this matter? There will be those, such as the Minister in his remarks before the break, who say that civil partnership is enough. There are those who say the name of the institution may not matter but it does matter. There are two key reasons for this. First, it matters in law. It amounts to second class citizenship not to permit gay couples to marry. Even in the UK, where the civil partnership law is far more inclusive and far closer to the marital status than this Bill, we still see a difference in status; it is still not marriage. It matters in particular in Ireland because, of course, in the Constitution the only family that is given constitutional protection in Article 41 is the family based upon marriage. As Senator Regan said, this is a far more restrictive interpretation of the definition of family than we see in the European Court of Human Rights jurisprudence, where Article 8 on family rights has allowed for a much more expanded definition of family to include cohabitants and children, be they gay or straight cohabitants. We need to see in our law a recognition of much more diverse forms of family and we need to see constitutional change on that. However, while marriage is given this privileged status, it gives an even greater reason that gay couples should be entitled to enter marriage and why this Bill falls short of what is necessary to provide for equality.

Second, the difference between marriage and civil partnership matters greatly in practice. It is not the same in reality. What we have is a very different model to the UK civil partnership model; it is a far more restrictive version of civil partnership and it falls far short of marriage in many respects. The most glaring aspect of this is in the absence of any reference to the rights of children, many of whom are currently living with gay parents and in gay families, and who deserve and require this recognition. There are other ways in which it falls short of marriage, to which I will return, but the lack of reference to children is the most glaring omission in this Bill.

The lack of legislative recognition for the children currently living in gay families in Ireland means they will continue to be discriminated against legally as they will not have any rights vis-À-vis the non-birth parent in the relationship. The Minister addressed this in his speech when he said he did not want to see piecemeal development but, in fact, this Bill was the right place to introduce the amendments that are necessary. The advice just published from the Ombudsman for Children, with which we have very helpfully been supplied, makes this point very clearly. At page 2 of her advice, the Ombudsman states:

... the Bill does not adequately address the rights and needs of children ... it is unclear why [the consideration of children] resulted in a Bill that did not prioritise the rights and interests of children. Although the situation of same-sex couples will be improved considerably by the enactment of the ... Bill, the situation of children with same-sex parents will remain largely as it is at present ... It should be borne in mind that this is not a hypothetical problem. The omission of robust protections for the children of civil partners will have real consequences for the young people concerned and it is in their interests that the law reflect and provide for the reality of their lives.

It is a very robust critique of the Bill and we would absolutely share that view.

In fact, there are two references to children when one considers the Bill very carefully. There is a very welcome amendment in section 73 on succession rights to allow the children of a civil partner to succeed to their parents' estate but there is no right of succession if the parent who has died is not their birth or adoptive parent. In section 129, there is some broader reference on the dissolution of a civil partnership where the court may have regard to a child to whom either civil partner owes an obligation of support. While that is welcome, it does not go far enough and we have put forward amendments to try to address this.

I put forward various amendments of the sort the Ombudsman for Children has proposed, as did Senator Norris, when we debated the Adoption Bill. I put forward an amendment on special guardianship and both Senator Norris and I proposed amendments explicitly permitting gay couples to adopt. The Minister, Deputy Andrews, at that point said these amendments were not appropriate in that Bill and he explicitly referenced the introduction of the civil partnership Bill. Now, with the civil partnership Bill, we see the Minister, Deputy Dermot Ahern, saying a comprehensive review is underway of the rights of children and it will all be dealt with later. When are we going to deal with it? We need an answer to that question. It is simply not good enough for the many children who are currently existing in what Senator Norris has described as a legal limbo and whose rights vis-À-vis their non-birth parents are simply not being recognised.

There has been a good deal of talk from those opposed to this Bill more generally about the need for the preservation of marriage as exclusively opposite-sex because that is better for children. Again, I have not seen any evidence to support the contention that extending marriage rights or civil partnership rights to gay parents or gay partners in any way impacts adversely upon children - nothing has been produced to show that. All the available research shows it is the quality of parenting that matters, not whether the parents are gay or straight.

Many of the studies cited by the other side, including the infamous Fourth National Incidence Study of Child Abuse and Neglect produced by the US Government this year, do not look at all at gay parenting as against straight parenting and have different research criteria. That US study made a series of very different and somewhat inconclusive findings, and explicitly stated that issues other than family structure needed to be considered. The incidence of child maltreatment varied as a function of several characteristics of children's families, including parents' employment, family socioeconomic status, family structure and living arrangements, grandparent caregivers, family size and metropolitan status of the county.

Other studies have also been done, including a recent Spanish study of 214 families of various types, including same-sex parents and families with married parents, etc. It found that young children and adolescents generally benefited from attention received by two engaged, caring parents of the same gender. Gay parents were as good if not better at raising healthy, well-adjusted children than the heterosexual counterparts.

The point made in the study was that often studies touted by the other side do not address same-sex couples and their children. Instead they tend to examine the differential effect on children of being raised by single parents rather than two parents. It is an important point. In this jurisdiction marriage equality has presented some experiences from children of gay couples and those who are adults have expressed their own view that the only discrimination experienced was from other people, and they were otherwise brought up in a healthy and loving environment.

As legislators we must deal with the reality that there are gay couples in Ireland with children who deserve equal treatment. There are children who have and are growing up with gay parents and in gay families, and gay couples foster children, as the Minister of State with responsibility for children, Deputy Barry Andrews, has said. He has said such people make excellent foster parents. Gay individuals adopt children, although they can only do so as individuals and not as couples. It is long overdue for the children in such families to be given legal recognition.

There are other flaws in the Bill and areas where it falls far short of anything close to marriage. This is notable in the area of immigration law and the recognition of foreign marriages. Gay couples who have married abroad will see their relationship only given the status of a civil partnership in our law. In the dissolution of a civil partnership there is a differential treatment, and a couple may only seek dissolution where they have lived apart for two of the previous three years. A longer period is required for couples seeking divorce from a marriage at four to five years.

There is a lack of specific protection in the Bill relating to equality in social welfare and taxation. We are told other legislation is necessary to bring those changes into effect. I was glad to hear the Minister, Deputy Dermot Ahern, say those changes are being drafted to be included in finance and social welfare Bills, but I would like clarification on when we can expect to see those in place. I presume the full effect of this Bill will not be seen until that is done, but I would like confirmation in this regard.

Many people in Ireland want to know when they can enter civil partnership ceremonies. They have been waiting a long time and need to know when this will happen.