Mary Seery Kearney (Fine Gael) | Oireachtas source

I hear what everybody is saying and I very much respect the emotion that is involved. I stand here as a married person whose family is not included in this amendment, so it is not without its boundary. I think it is important that we keep the debate at an academic level. We are Senators, and it is important that the debate is not too personalised and that we do it like that. However, I think this referendum is absolutely necessary.It is very important that we widen the span, definition and understanding of the concept of family at constitutional level. Let us look at the case law, namely, McGee v. the Attorney General, where Mrs. McGee would have been in a life-threatening position if she had another pregnancy. She won the right to have access to contraception, not on the basis that it was a health issue or a human right based on that issue but on the basis that she was married and had an entitlement to privacy. That is an obscene consequence of the Constitution. While the Constitution also makes provision for divorce, for as long as we recognise the fact that marriage can break down, we need at the same time to honour the fact that families can constitute a whole heap of different things. There are families that are an amalgam of former partners, former wives and former husbands that all come together as a single unit. This means that we do need to modernise the Constitution. I will be supporting this referendum, and the other one which we are due to deal with later, by voting "Yes".

The decision in the O'Meara case that was announced earlier today is a little more nuanced. My understanding is that this decision is based on Article 42 rather than Article 41. It is based on the right of the child to be supported and the widower's pension going to that family because of the rights of the child, not as a result of the fact that their relationship was on a par with marriage. The members of the Supreme Court were very deliberate in stopping short of not intruding on what is currently being dealt with in the Oireachtas. It is important that we do not confuse the issues because that does not lend it self in any way to today's debate.

I have sat in the High Court as an observer while the instructions to counsel for the State were to argue that the family before the High Court was not a family and should not be afforded the protections offered by the State. I have seen that happen. The Egans have come out and spoken about it. Brian and Kathy Egan have two children. The first was born naturally and in the normal course of how children are born to a couple. In that respect, they are fully and wholly a family with all the constitutional protections. Their second child was born via surrogacy after years of absolute tragedy within the family. They are not a considered family when it comes to that child. I know the Minister will be urging that the assisted human reproduction legislation comes through the Houses as quickly as possible because we need to afford people protection in that regard. However, it is a fairly stark and frightening experience to sit in court and hear those acting for the State say that this is not a family and that it is not entitled to the protections offered by the State. One would be entitled to presume, as a citizen, a contributor and a member of society, that, for example, one is entitled to such things as privacy or the right to make decisions, but those rights are not afforded in such a case. No family should be put through that – whether it is a single parent with children or some other form of family unit. We must recognise the fact that grandparents rear their grandchildren, as do single dads and single mams. It is not the province of any particular gender. It is not any of those things. To not be covered, and to have the State be so stark, is incredibly hurtful. It is an incredibly shocking experience. While I was not personally involved, all of the issues before the court on the day in question would apply to me.It is hard to see it argued and to know that the State actually gives those instructions to say one needs to argue that this is not the case; it is not the fault of counsel who are arguing the law. We need the law to change. Our Constitution stands for the aspirations of our people, the vision and boundaries, the things which we value. Our Constitution needs to reflect the values of our people. Those values of our people are the 42% who are not born within marriage. Are people more dutiful if they are married? I do not think so. I completely agree with Senator McGreehan that there many a married couple are not dutiful at all and many who are not married are very dutiful.

Within this, we need to first of all to recognise that these provisions have very clear boundaries. Families where a child has been born via surrogacy are not included, even in durable relationships, even though I have been married for 22 years. I understand the reasons for that. I am not expecting that it should be so elastic as to cover every possible scenario because it needs not to. It needs to have clear boundaries. We introduced legislation that provides those pathways and deals with those or excludes the "throuples" that were alluded to in the Dáil.

Within this, we need to respect that case law down through the years has founded its decision upon marriage, as in the McGee case and other decisions where the family was not recognised and is argued even unto today that there is no recognition of it as a family. That is not a modern Ireland. That is not a progressive Ireland and it does not reflect the progression and the inclusion that is required.

Does this have implications for taxation? One of the notes I have to myself is that perhaps we need to go back and look at one of the progressive pieces of legislation that the Minister himself brought through, that being the parental leave legislation. One of the points about that at the time was that the children in single-parent families were at a disadvantage because in two- parent families, both parents get the allocation of leave. In single-parent families there will only be one parent getting the leave and consequently those children are at a disadvantage. There are aspects like that I would like to point out. In the future, I hope we will be looking at amendments that are very family-centred. If we need to change and progress our taxation, then so be it. I went to the trouble of getting married. I wanted to; it was really important. However, I do not think that it should change my rights and entitlements regarding taxation. I do not think that it should put those at any higher level. That is a personal commitment; in some cases it is a faith commitment. It is reflective of a person's own particular values. They are not superior or inferior, they are just different. They are different choices and consequently we have this eclectic society that reflects all sorts of decisions. I do not actually see a problem in advancing and changing our taxation system, where required. I do not have an issue with that. The O'Meara decision today in that way is progressive because it was actually about the provision for the children. That should be in keeping with our future jurisprudence along the lines of anything that flows from this constitutional amendment, which I will support 100%. I look forward to the clarifications and refinements that will come out of tomorrow's debate on Committee Stage. I thank the Minister.