Constitutional provision on woman’s role in home ‘outdated’

Former supreme court judge Catherine McGuinness calls for ‘simple deletion’ of article

Catherine McGuinness: widening the article to include fathers has “distinct difficulties”. File photograph: The Irish Times

Catherine McGuinness: widening the article to include fathers has “distinct difficulties”. File photograph: The Irish Times


It is widely accepted that the article in the Constitution that refers to a woman’s role within the home is outdated, discriminatory and undesirable, the former supreme court judge Catherine McGuinness has said.

Ms McGuinness has said she is in favour of a “simple deletion” of article 41.2 which would be a “relatively achievable task”.

She was speaking before the Oireachtas Committee on Justice and Equality which is considering the proposed 38th Amendment to the Constitution, which would seek to change or delete article 41.2.

Ms McGuinness said if the Oireachtas intends to have a gender balanced article or constitutional protection for carers, it should “start again and frame an Article” with advice as to the wording to ensure it would be effective.

The Government had hoped to hold a referendum on removing the article on the day of the presidential election (October 26th). But the vote has been deferred to allow further consideration by the Oireachtas of what, if anything, should be inserted in its place.

The article reads: “The State recognises that by her life within the home, woman gives to the State a support without the common good cannot be achieved.

“The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”

Ms McGuinness told the committee any suggestion of widening the article to include fathers has “distinct difficulties” and questioned whether the inclusion of the work of carers in the Article would result in real legislative progress in the short term.

“Given that most assistance for carers would involve decisions on public expenditure are rightly regarded as the preserve of the Oireachtas and the executive, could the courts use a new article on carers to any effect?” she asked.

Ms McGuinness said any framing of constitutional wording needs great care if the change is to have real effect and in order to “avoid unforeseen later difficulties and problems”.

What the carers said

Family Carers Ireland told the committee it does not support the proposal for repeal simply. And instead it should be replaced to recognise and support unpaid care in the home. The charity said the article should be reworded to make it gender neutral and should also make reference to “family life”.

Family Carers chief executive John Dunne said it is quite unusual in not specifying a constitutional framework around the respective roles of the State and the community in the provision of care.

“Family Carers Ireland believes that the overwhelming consensus in Ireland would support a constitutional provision that recognises the family’s primary role in provision of care and the State’s responsibility to support families in performing this role as well as acting as the provider of last resort where a family is unwilling or unable to perform the role properly,” he said.

The Stay at Home Parents Association said they are calling for an amendment to the article that is “compassionate”. This would, they added, include removing paternalistic and sexist language that is offensive, but the inclusion of a recognition that “nurturing and caring is important to who we are”.

Spokeswoman Pauline O’Reilly said they would question whether the idea that deletion is simpler.

“This is a unique opportunity to express ourselves as a people and if further examination is required in order to do this then this is important work,” she said.