Alan Shatter's Irish Times Interview
07/05/2023 20:15 Filed in: same-sex | referendum
In early April I sent Alan Shatter a paper put together by a group of concerned citizens and widely distributed. It was called Same-Sex Marriage in the Irish Constitution and it contained a careful and responsible analysis of all the main arguments between the YES and the NO sides in the upcoming referendum, including the issue he raised when he gave the Irish Times interview on Monday May 4 to Sarah Bardon, denying any link between Surrogacy and the Same-Sex Marriage Referendum.
Alan Shatter either read this document, which was sent to him personally by email, or he decided deliberately to ignore it. Neither course is worthy of him, in the light of what he said and what was reported as the main Page One lead in The Irish Times on Monday 4 May.
It served Shatter’s purpose, however. He said in the interview that it was “very unfortunate” that the opposition to this Referendum had raised the issue of surrogacy in a way that “lacks insight and compassion”.
In saying this Alan Shatter must have decided deliberately that he would distort the circumstances. What he stated is wholly unacceptable and untrue. As this was been done by someone in his position and with his personal and professional experience of the importance of the truth, particularly in legal matters, it has to be answered.
The No Side has treated the complex and worrying impact of same-sex marriage on the issue of surrogacy in a truthful, caring and accurate way. When Alan Shatter made that false accusation he had the study paper referred to above to hand. It is a pity that he ignored it and made the spurious claim that the Marriage Referendum has nothing to do with surrogacy.
In the interview he went to serious lengths in seeking to rubbish the No Side. He stated that they were engaged in “a diversion” and he went on: “It is very unfortunate that children are being dishonestly used as a weapon in this referendum by individuals.”
He later praised himself for having tried to deal with surrogacy in the “Children and Family Relationship Bill”. In the light of what he said, reported on Monday in the Irish Times interview, I felt relieved that he did not have the chance to do what he claimed was right – which I reject – and am relieved that he is now an onlooker and no more than that, just like myself.
It is also a pity tha, in the same interview he backed away from criticism of his former Cabinet colleagues.
Since what the No Campaign is doing is delivering the truth on this matter of surrogacy, I hope that despite the best efforts of people such as Alan Shatter and many others, the No Campaign will be successful in convincing the wider public that surrogacy is very much part of future same-sex marriage. This is why it has been handled with care and caution in other countries.
As I understand the position, the proposed Article 41.4 is to be inserted after Article 41.3.1 in our Constitution provides the following:
“The State pledges itself to guard with special care the institution
of Marriage, on which the Family is founded, and to protect it
against attack.”
If two men are to become the institution of Marriage in our Constitution, is not their right to found their family with children then protected against attack?
How can they realize or effect their new constitutional right to found a family with a child without using donor assisted human reproduction (DAHR) and surrogacy?
Alan Shatter should have advised the Irish public in his interview upon the legal import of the conjunction of Article 41.3.1 with the proposed Article 41.4 in the Irish Constitution, and furthermore explained the secret and magic method of procreation that did not require surrogacy.
Perhaps the truth could have emerged if he had an alternative proposal for us answering the following case example. I offer him the following case-history involving Michael and John
• Michael and John marry each other after the introduction of Article 41.4 into the Constitution of Ireland. They both want to have a child together.
• Michael is to provide a gamete (the sperm) and his sister is agreeable to act as the surrogate mother. John has a sister who will provide the other gamete (the egg) for free. This will ensure that both men have a genetic link to the child and the surrogate mother will be the aunt of the child.
• The problem is that the aunt, the sister of Michael, wants to be paid more than her reasonable expenses for being the surrogate mother. Michael and John bring an action to the High Court challenging the constitutionality of a legislative provision prohibiting them paying her a fee which, while beyond her reasonable expenses, is far from extortionate or even commercial.
• Michael and John argue that as they are married and as the State pledges itself to guard with special care their marriage, on which their family is to be founded (intending as they both are to have a genetic link to the child), the legislative restriction on paying slightly more than reasonable expenses to the aunt of the intended child is unconstitutional pursuant to the pledge given by the State to protect their marriage in Article 41.3.1.
• They argue that as their family is now founded on marriage, pursuant to Article 41.1.1, the State must recognise that their family is, in the words of this article, “a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”
• They further argue that the State, pursuant to Article 41.2.1, guarantees, in the words of this article, to protect their family “in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State”.
• They also rely upon the post-referendum constitutional principle of ‘marriage equality’ in that Article 40.1 must be read as giving completely equal rights to a married male couple as it does to a married heterosexual couple or a married lesbian couple. These marriages can have a child through the use of DAHR with only one spouse providing a gamete and the other spouse having no genetic link to a child. Why should the marriage of Michael and John be discriminated against as a marriage, particularly as the surrogate mother will be the aunt of the intended child and only wants a reasonable fee in excess of her expenses?
• Michael and John also argue that their family (to be founded upon their marriage) enjoys a constitutional protection and status which an unmarried heterosexual couple or an unmarried lesbian couple do not enjoy and that there should be no limitation on the payment of this additional fee to the intended aunt of the child, which is necessary to realise their pledge from the State in Article 41.3.1 and the constitutional status of their family, founded upon their marriage, particularly as an unmarried heterosexual couple or an unmarried lesbian couple can found their family without the need for surrogacy.
Where does the truth lie? Is it in Alan Shatter’s spurious and ill-researched analysis of the No side? Or is it in the careful outline of a specific case that is simply one example of an endless number of cases that will easily arise after the Same-Sex Marriage Referendum?
Could Alan Shatter explain to the Irish public and to myself whether this is or is not a true example of countless other examples that will pave the way for attacks on legislative restrictions upon donor-assisted human reproduction and surrogacy in our Superior Courts by reason of the implied constitutional status that they will have once the Marriage Referendum is passed, if it is passed?
In short, Alan Shatter should answer this question: What does it mean to say that two men have a constitutional right, as a married couple, to FOUND a family? (The so-called “act” of founding is taken from the word “founded” in Article 41.3.1 of the Irish Constitution).
Alan Shatter either read this document, which was sent to him personally by email, or he decided deliberately to ignore it. Neither course is worthy of him, in the light of what he said and what was reported as the main Page One lead in The Irish Times on Monday 4 May.
It served Shatter’s purpose, however. He said in the interview that it was “very unfortunate” that the opposition to this Referendum had raised the issue of surrogacy in a way that “lacks insight and compassion”.
In saying this Alan Shatter must have decided deliberately that he would distort the circumstances. What he stated is wholly unacceptable and untrue. As this was been done by someone in his position and with his personal and professional experience of the importance of the truth, particularly in legal matters, it has to be answered.
The No Side has treated the complex and worrying impact of same-sex marriage on the issue of surrogacy in a truthful, caring and accurate way. When Alan Shatter made that false accusation he had the study paper referred to above to hand. It is a pity that he ignored it and made the spurious claim that the Marriage Referendum has nothing to do with surrogacy.
In the interview he went to serious lengths in seeking to rubbish the No Side. He stated that they were engaged in “a diversion” and he went on: “It is very unfortunate that children are being dishonestly used as a weapon in this referendum by individuals.”
He later praised himself for having tried to deal with surrogacy in the “Children and Family Relationship Bill”. In the light of what he said, reported on Monday in the Irish Times interview, I felt relieved that he did not have the chance to do what he claimed was right – which I reject – and am relieved that he is now an onlooker and no more than that, just like myself.
It is also a pity tha, in the same interview he backed away from criticism of his former Cabinet colleagues.
Since what the No Campaign is doing is delivering the truth on this matter of surrogacy, I hope that despite the best efforts of people such as Alan Shatter and many others, the No Campaign will be successful in convincing the wider public that surrogacy is very much part of future same-sex marriage. This is why it has been handled with care and caution in other countries.
As I understand the position, the proposed Article 41.4 is to be inserted after Article 41.3.1 in our Constitution provides the following:
“The State pledges itself to guard with special care the institution
of Marriage, on which the Family is founded, and to protect it
against attack.”
If two men are to become the institution of Marriage in our Constitution, is not their right to found their family with children then protected against attack?
How can they realize or effect their new constitutional right to found a family with a child without using donor assisted human reproduction (DAHR) and surrogacy?
Alan Shatter should have advised the Irish public in his interview upon the legal import of the conjunction of Article 41.3.1 with the proposed Article 41.4 in the Irish Constitution, and furthermore explained the secret and magic method of procreation that did not require surrogacy.
Perhaps the truth could have emerged if he had an alternative proposal for us answering the following case example. I offer him the following case-history involving Michael and John
• Michael and John marry each other after the introduction of Article 41.4 into the Constitution of Ireland. They both want to have a child together.
• Michael is to provide a gamete (the sperm) and his sister is agreeable to act as the surrogate mother. John has a sister who will provide the other gamete (the egg) for free. This will ensure that both men have a genetic link to the child and the surrogate mother will be the aunt of the child.
• The problem is that the aunt, the sister of Michael, wants to be paid more than her reasonable expenses for being the surrogate mother. Michael and John bring an action to the High Court challenging the constitutionality of a legislative provision prohibiting them paying her a fee which, while beyond her reasonable expenses, is far from extortionate or even commercial.
• Michael and John argue that as they are married and as the State pledges itself to guard with special care their marriage, on which their family is to be founded (intending as they both are to have a genetic link to the child), the legislative restriction on paying slightly more than reasonable expenses to the aunt of the intended child is unconstitutional pursuant to the pledge given by the State to protect their marriage in Article 41.3.1.
• They argue that as their family is now founded on marriage, pursuant to Article 41.1.1, the State must recognise that their family is, in the words of this article, “a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”
• They further argue that the State, pursuant to Article 41.2.1, guarantees, in the words of this article, to protect their family “in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State”.
• They also rely upon the post-referendum constitutional principle of ‘marriage equality’ in that Article 40.1 must be read as giving completely equal rights to a married male couple as it does to a married heterosexual couple or a married lesbian couple. These marriages can have a child through the use of DAHR with only one spouse providing a gamete and the other spouse having no genetic link to a child. Why should the marriage of Michael and John be discriminated against as a marriage, particularly as the surrogate mother will be the aunt of the intended child and only wants a reasonable fee in excess of her expenses?
• Michael and John also argue that their family (to be founded upon their marriage) enjoys a constitutional protection and status which an unmarried heterosexual couple or an unmarried lesbian couple do not enjoy and that there should be no limitation on the payment of this additional fee to the intended aunt of the child, which is necessary to realise their pledge from the State in Article 41.3.1 and the constitutional status of their family, founded upon their marriage, particularly as an unmarried heterosexual couple or an unmarried lesbian couple can found their family without the need for surrogacy.
Where does the truth lie? Is it in Alan Shatter’s spurious and ill-researched analysis of the No side? Or is it in the careful outline of a specific case that is simply one example of an endless number of cases that will easily arise after the Same-Sex Marriage Referendum?
Could Alan Shatter explain to the Irish public and to myself whether this is or is not a true example of countless other examples that will pave the way for attacks on legislative restrictions upon donor-assisted human reproduction and surrogacy in our Superior Courts by reason of the implied constitutional status that they will have once the Marriage Referendum is passed, if it is passed?
In short, Alan Shatter should answer this question: What does it mean to say that two men have a constitutional right, as a married couple, to FOUND a family? (The so-called “act” of founding is taken from the word “founded” in Article 41.3.1 of the Irish Constitution).