Breda O’Brien: Love is not enough when it comes to children’s rights

‘The inconvenient truth is that we are altering Article 41 of the Constitution which has a simple heading – the Family’

When it comes to the redefinition of marriage, every major political party, every newspaper’s editorial line, every celebrity is telling us one thing: people who love each other are entitled to marry each other.

If it were that simple, I would have no problem with redefining marriage. Two adults have the right to love whom they wish and express that love how they wish.

However, the inconvenient truth is that we are altering Article 41 of the Constitution, which has a simple heading: the family.

If the referendum has nothing to do with children, why are we amending the article that concerns the family? Do children have nothing to do with family?


Article 41 recognises that every single child has a mother and father. A mother and father each provide half of a child’s identity. Marriage, among other things, provides legal frameworks to maximise the chances that a child will be raised by those two crucial people.

Lots of people won’t get to be raised by loving biological parents because of neglect, abandonment or other tragic circumstances. Children can turn out really well despite all sorts of challenges. But usually, we recognise that not being raised by your Mam or Dad constitutes a loss. This is not based on some spurious notion that gay people cannot be good parents. Two men can love each other and two men can love a child. But neither of them can provide a child with a mother.

Healthy development

As UN secretary general Ban Ki-moon said in 2009, “Mothers play a critical role in the family, which is a powerful force for social cohesion and integration. The mother-child relationship is vital for the healthy development of children.”

In a poll last year that heavily endorsed the redefinition of marriage, 66 per cent of people thought that the mother-father model worked best for children.

If this Amendment passes, it will be impossible to give preference in law to that idea. Currently, while single people can adopt, they have a more qualified right to do so than married couples.

The upcoming Child and Family Relationships Bill will remove that preference for married mums and dads, and allow cohabiting couples and same-sex couples to adopt on the same basis as them.

These provisions are quite possibly unconstitutional now but, by redefining marriage, we will stamp these new provisions with a seal of constitutional approval, and they will be impossible to change back.

The next objection is that lots of people get married and never have children, as if that somehow proves that marriage is nothing to do with children.

By definition, a childless marriage does not affect even one child’s right to be raised by a mother and father.

Redefining marriage will affect a child’s right to know and be loved, where possible, by the man and woman who conceived her.

Article 41 has been interpreted to guarantee the rights of married couples to have children: this has so far been understood to mean with each other. But no same-sex couple can have children without third-party intervention.

Reproductive technologies, when used by a same-sex couple, plan from the beginning that the baby can never have a parental relationship with her biological father, her biological mother, or both.

Biological parent

There are circumstances in which lesbian or gay people are raising children where a relationship with the other biological parent is impossible but the children have no legal link to the non-biological parent either. Those situations should be recognised and provided for.

One of the few good things that the Child and Family Relationships Bill does is award guardianship rights to the partners of biological parents, where such guardianship is in the best interests of the child.

So, to give a legal and financial link to the non-biological guardian does not require constitutional change, or redefinition of marriage in order to fully and completely vindicate the rights of children being raised by gay couples.

The same provision will give guardianship rights to the thousands of grandmothers who are helping to raise their daughters’ children. That doesn’t require redefinition of marriage, either, but no one is saying these families are inferior.

Dr Joanna Rose was conceived using sperm that her genetic father sold. She is regularly told that she should be grateful to be here at all and therefore has no right to express any sense of loss.

Yet, suppose you took a baby away from a parent and said to the adult, “Never mind, you’ll be able to find out her name and some selected details in 18 years’ time”? People would be rightly outraged.

But through reproductive technology, we bring children deliberately into the world in a way designed to separate them from ever having a parental relationship with either a genetic mother or father, and that’s supposed to be just fine for the child?

As Leo Varadkar said in 2010, “Every child has the right to a mother and father and, as much as is possible, the State should vindicate that right.”

Redefining marriage and amending Article 41 will weaken if not destroy that right.

For the children who will be affected, “all you need is love” is just not good enough.