Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank the Senators for their amendments and for their detailed contributions this afternoon. The majority of the amendments put forward relate to the section of the Bill that deals with the proposals in Article 41.1.1° of the Constitution. I will restate the amendment being proposed by the Government: "The State recognises the Family, whether founded on marriage or on other durable relationships, as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law." In this new restatement of Article 41.1.1°, married families are a constitutional family, but durable relationships represent a constitutional family too. The reason for this proposal is to expand that definition of family under the Constitution solely beyond the marital family to include cohabitants with or without children, and to include one-parent families. The approach proposed by the Government will acknowledge a broader and more inclusive definition of the family. However, we want to do that up front. We want to do it at the very start of the article on the family - Article 41.1.1° - where is set out that specific recognition of the family. This is a deliberate choice. We know, and it has just been spoken about, that some of the most marginalised families in our country's past and present are one-parent families. The Government thinks it is important to have this positive and upfront recognition of the concept of family in Article 41, and stating that it is no longer limited to the marital family but also encompasses other durable and committed relationships - namely, one-parent families, cohabiting couples, and any children they have.

This broadening of the definition of the family also requires an amendment to Article 41.3.1°. Section 1(1)(c) of the Bill proposes inserting an amended version of Article 41.3.1° that omits the words, "on which the family is founded." That article will read that, "The State pledges itself to guard with special care the institution of Marriage and to protect it against attack." The reason for this is that, to date, that article has always been read by the courts as saying that the constitutionally protected family can only be the marital family. That is why we need to delink those two concepts. However, it is to delink and not deconstruct. I will come back to the issue of deconstruct.

The proposed amendments from Senator Hoey and her colleagues have much the same effect, but they have a slightly different take in drafting. I again appreciate the agreement in intent. I do not propose to accept this particular amendment because I believe that clear statement up front in Article 41.1.1° is important in terms of recognition. A number of Senators have proposed formulations involving the words, "including, but not limited to". I think they were Senator Higgins and Senator Ruane and her group, and separately Senator Mullen. I understand some of the amendments in that particular group reflect a concern about the term "durable relationships", and in particular whether it covers the parent-child relationship. I make it clear that the clear intention of the term "durable relationship" is that it covers the parent-child relationship. That is clearly supported by the fact that the term "family" used in Article 41 is also used in Article 42.1, again in a context where it clearly encapsulates a parent-child relationship. As such, this definition is far more expansive than a definition from EU law of a similar term relevant to the EU citizenship directive. The Government's proposed wording of "durable relationships" would expand the constitutional concept of a family to cohabitants, with or without children, as well as to one-parent families. I appreciate that some Senators may have wanted to go even further; to open some more non-exhaustive wording in terms of the proposed amendment. While this may be the intention of the proposed amendments, it is the case that Article 41 already sets out clear guardrails which describe and delimit the concept of the Constitution within the family. These describe the family as a fundamental unit group of society, as a moral institution and as a necessary basis for social order. These existing guardrails within Article 41 are powerful concepts.