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Children’s rights must not mean women’s wrongs

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Last month the Irish Minister for Children, Frances Fitzgerald, announced that the long-promised referendum on the rights of children would finally be held this year.

The background to this lies in the following provisions of the Irish Constitution:

Article 41
1. 1° The State recognises the Family 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.
2° The State, therefore, guarantees to protect the 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.

3. 1° 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.

Article 42
1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

The proposed referendum, as agreed by an all-party parliamentary committee, would leave Article 41 intact but remove those two subsections of Article 42. The replacement text is rather lengthy so I’ll just provide a link rather than post it all here.

The impetus for this change comes from a series of judicial and policy decisions, which have been seen as making it so difficult to interfere with the sacred institution of The Family (and more particularly the marital family) as to effectively tie the State’s hands when it comes to child protection and welfare. A few examples:

  • The 2001 case Northwestern Health Board v HW, where the Supreme Court upheld the right of parents to refuse to allow their child undergo the PKU test, a totally safe procedure to detect a disorder that leads to brain damage if untreated.
  • An unspeakably horrible case of familial abuse in County Roscommon, revealed a little over a year ago. You can Google it yourself, I don’t have the stomach for it. The mother had obtained an injunction preventing the children being removed from the family home; her affidavit cited the rights that she and her husband, as a married couple, had over their children. Social workers on the case confirmed that Article 42 had a sort of chilling effect on their efforts to protect the children, as it led them to believe they would need to prove a nearly impossible threshold of neglect.
  • The 2006 “Baby Ann” case (N v Health Service Executive), in which a two-year-old girl was ordered returned to her birth parents. They had consented to her adoption, but changed their minds and subsequently married – at which point, according to Justice McGuinness, the rights of the family took over from the best interests of the child as the “central issue”. (Actually, on the peculiar facts of this case the birth parents would have had a decent argument even without the constitutional imperative, but there are obvious reasons to be concerned about the court’s emphasis on the primacy of the marital family.)

So you can see why there’s widespread support for amending the Constitution to specifically enshrine the rights of children. What little opposition there is is mainly coming from two of the most repellent groups in Irish society: the xenophobes, who fear the amendment being used to prevent deportation of Africans with minor children; and the uber-Catholics for whom any interference with the marital family is anathema. (It hasn’t gone unnoticed that the list of amendment opponents reads like a Who’s Who of the Irish anti-abortion movement – whose concern for the rights of children clearly ends at birth.) Ironically, although the latter group is far more organised and politically powerful than the former, it is the deportation issue that is actually holding the referendum up. I was present at a private meeting a couple years ago where a then-Cabinet Minister, a current Cabinet Minister and a backbench member of the other current government party all agreed that the wording would have to be changed to assuage those fears.

Irish feminism, on the other hand, seems to be pretty much entirely behdind the amendment, and that’s fairly understandable. After all, the primacy of the marital (read: patriarchal nuclear) family hasn’t exactly done us many favours; and while the amendment won’t remove Article 41.1, it clearly will narrow its scope. But while I wouldn’t argue that we should vote “no”, I do think some important issues have been overlooked in the debate. Consider the following:

  • In 2006, the High Court ordered that a Jehovah’s Witness be given a blood transfusion (subscription required) contrary to her express wishes, the first time this was done to a competent adult. Counsel argued and the Judge accepted that her child’s need for a parent overrode her right to refuse medical treatment.
  • In the US, women have lost custody of their children for working outside the home, being lesbians and even reporting domestic abuse.
  • According to a representative of the fabulous Association for Improvements in the Maternity Services Ireland who I was speaking to recently, some Irish women have been threatened with prosecution – yes, prosecution – if they insisted on giving birth at home rather than under the full control of the professional (and strongly male-dominated, and extremely paternalistic) medical industry.

What these cases all have in common is that they’re examples of the “best interests of the child” being used to further a patriarchal agenda, in which motherhood automatically strips women of their autonomy. Make no mistake about it, this isn’t just the standard assumption of self-sacrifice that having children always entails; it’s the quite deliberate channeling of women with children – whose primary identity is now “mother” – into tightly prescribed roles, with the legal system there to act as enforcer.

I’m being a bit deliberately melodramatic here and I’m not suggesting that passage of this amendment will actually turn us all into Stepford wives. But I don’t think we should be complacent about the risk of “children’s rights” becoming another tool of state misogyny. Let’s not forget that this is a state where woman’s primary role as housewife and mother is actually enshrined in the Constitution (Article 41.2, for readers abroad). Do you trust all of our judges to read the new amendment in a way that protects children’s rights without trampling on women’s? I don’t.

I’m also uneasy about the way this amendment could be read in juxtaposition with Article 40.3.3, on the right to life of the “unborn”. Judging by some of the cases coming out of the US at the moment, it seems that pregnant women in some states might be only a few years away from being forcibly institutionalised to prevent them doing anything that might possibly lead to the birth of a less-than-perfectly-healthy baby, such as having the odd glass of wine or eating too much junk food. It’s a strange sort of logic that allows women to be penalised for “neglecting” foetuses that they have every right (at least on paper) to abort, which I suspect is why those laws aren’t more widespread throughout the US than they are. Here, of course, the constitutional position on abortion is no impediment to such laws – and with a mandate to protect both the rights of (actual) children and the rights of the “unborn”, there is, I think, a worrying possibility that this American trend could catch on here.

Again, and just to be perfectly clear, I’m not saying that feminists should oppose the amendment. In all likelihood I will vote for it myself, on a simple cost-benefit analysis (as in, I think overall it will probably do more good than harm). And I don’t have any suggestions as to how it could be worded to avoid these nightmare outcomes, especially while the odious Articles 40.3.3 and 41.1-2 remain. But we shouldn’t be leaving it to the racists and religious fanatics to highlight its possible unintended consequences. We should be putting the State on notice that although we want to see better protection for Irish children, we are not going to tolerate it becoming yet another tool to oppress Irish women.

About Wendy Lyon

Fighting a lonely battle for evidence-based policy and the proper use of apostrophes.

24 responses »

  1. More shameless propaganda to support the destruction of the family, and by extension society, from the great feminazis of Ireland.

  2. Trolling normally requires a more intricate argument that my comments. However, I feel the comments are an accurate assessment of your agenda, which should have no place in society – it’s extreme, and feeds off itself, constantly attacking boundaries that should never be touched, let alone assaulted.

    This feminist sideshow, run by two employees of Sinn Fein, now sadly a party I previously voted for, is an embarrassment to that party, to be honest, and if wind of it what’s being advocated here ever left the academic confines of the Pale, then I suggest some rural Shinners would want to be considering their seats.

    • “Boundaries that should never be touched”? Wow. I have to say that’s the first time I’ve heard it suggested that there shouldn’t even be any debate over women’s role in society. It speaks volumes about you, Joe. And it’s a more extreme view than mine.

      Incidentally, this blog is a collective run by a number of people, only one of whom is a current employee of Sinn Féin (and who is both entitled to and perfectly capable of thinking for herself).

  3. I wasn’t specifically talking about the boundaries around the role of women in society, but it is as good an example as any to illustrate how tampering with established norms can and does have a domino effect on other areas which are the fabric of society (e.g.: the breakdown of the family). It’s not the debate that scares me, it’s the possible outcome of it and there’s always a more liberal bias to any debate which skews the outcome.

    Women already have choices, they can now separate or divorce, choose whether to reproduce (as long as the make the choice prior to intercourse and exercise caution), excel in academic and professional fields once they get in them and thus often have better career prospects than many men of their own age group, and much more. Of course there are still equality issues but both genders will never be truly equal because we are biologically different in every respect.

    • Joe, part of the problem here is that you’re talking about The Family (and one particular type of family, at that) as if it was not only an inherent good, but self-evidently so. It’s not surprising that you would see it that way, of course, since men generally have done pretty well from the family; and why wouldn’t you, it was designed to meet your needs. Women haven’t benefited from it in quite the same way, in fact for many it’s been simply a source of oppression and violence. So you can’t just flash “The Family” like it’s a trump card that ends all debate.

      Women already have choices, they can now separate or divorce

      No thanks to your fellow ideologues, of course, who fought tooth and nail to prevent us having that choice.

      choose whether to reproduce (as long as the make the choice prior to intercourse and exercise caution

      You never did address the points I made in the other thread about contraception failing or being sabotaged by abusive partners.

      excel in academic and professional fields once they get in them

      Again, something we’ve had to fight people like you for the right to do in the first place

      both genders will never be truly equal because we are biologically different in every respect

      “Every” respect? Really?

      What biological differences do you think make it impossible for us to be equal?

      • Well I’m sorry but I don’t view the martial family as something which was deliberately created as an method of oppressing women. Again it depends on the people involved, but the family founded on love since time immemorial, is not a tool of oppression but rather a tool of mutual respect and co-operation (see Keane CJ’s judgement in NHB v HW). I don’t think it should be unwritten because of the dysfunction of a proportion of people.

        I support divorce when it is in the correct circumstances, but the breakdown of families destroys all involved to some extent in my personal experience, and sadly the views of everyone including the innocent parties such as children aren’t always considered or respected in the process.

        How can an abusive partner sabotage the morning-after pill? I will concede that there needs to be greater supports put in place for women in abusive relationships and the whole issue of domestic violence needs to be taken seriously by the Gardai and the criminal justice system.

        I’ve never opposed the access of women to the workplace or to education, and never would do so. I would go as far to say that anything that would do so is wrong, as long as it doesn’t involve infringing the right of the unborn, of course.

        Yes, though we seem similar, both sexes/genders reason and confront things in entirely different ways which is supported by research. Give “Women are from Venus, men are from Mars” a try.

        • the family founded on love since time immemorial

          WOW. That’s just wildly ahistorical. I mean… wow. I suppose maybe I shouldn’t expect a little more knowledge than that from someone who cites pop psychology books as references, but really. You are aware of what the word “family” derives from, are you not?

          I don’t know what you think you’re demonstrating by referring to Keane’s judgment, by the way. And perhaps you didn’t realise this but he actually found against the rights of “the family” in that case.

          I support divorce when it is in the correct circumstances, but the breakdown of families destroys all involved to some extent in my personal experience

          Families can “break down” without divorce, or even separation. Just because people remain under the same roof doesn’t mean they have a functional relationship. And again, I’ll point out that what may seem perfectly functional to a husband has often been very damaging to a wife. Under “the family” women have traditionally been expected to simply put up with it – I make no apologies whatsoever for considering it progress that we no longer have to.

          How can an abusive partner sabotage the morning-after pill?

          The same morning-after pill that anti-abortion zealots have done everything they could to prevent women even having access to? Please. I really find it impossible to take you seriously when you claim that women should be satisfied with the advances that we’ve made, when we had to fight people with your viewpoint to make them at all.

          And you’re still ignoring the issue of contraceptive failure.

          I’ve never opposed the access of women to the workplace or to education, and never would do so.

          I have absolutely no doubt in my mind that if we were having this argument a few decades ago you’d be opposing precisely those things. Guess what’s made that position so extreme that not even conservative Catholics (openly) hold it these days? Feminism, that’s what.

  4. Trying to explain the significance and the social importance of the family to someone who seems to hate it. I don’t think there’s much point in continuing commenting as you seem to have an answer for everything, so I’ll tell you what, tell me what your vision is or what you expect to happen if your magical wish to implement all this stuff. Where would you draw the line?

    I felt that Keane’s description of the family and it’s constitutional importance was quite good, even though as you rightly point out, he went the other way in the end.

    How can an abusive partner sabotage that morning-after pill, or how can it fail?

    I don’t think I would even hold that view if we were to go back in time. Access to education and the right to work is common sense really. I’m for as much equality as is sensible.

  5. Also, in your vision, please include your views on legalising the selling of sex and everything else like that. Also, are you a Yank? I suppose you would support us following them and becoming a high crime cesspit also?

    • Unsurprising to see you slipping into non-sequitur and hysterics again. You are aware that the US has the strictest laws against selling sex of any Global North country?

      You also appear to think that a woman who doesn’t want to get pregnant should take the morning-after pill every single time she has sex, just in case her primary contraception fails.

  6. Is feminism not concerned with EQUAL (no less no more) rights for women? Nowhere in your article do you refer to the rights of the father of children or the rights of a child to a father; nor do you mention how the rights of fathers are equally threatened (or not) by the proposed legislation.

    I don’t see the merit in having a feminist movement that is essentially chauvanism for women. And I don’t see how you can expect support from men if you don’t appear to acknowledge that our rights should be EQUAL.

    Whatever the case may be; the real tragedy is the children have no voice, and can suffer greatly as a consequence. It appears impossible to legislate common sense into law, and this is one more area where “the law is an ass”.

  7. Fair enough. I also don’t believe that fathers should be denied the right to refuse medical treatment just because they are fathers; that they should lose custody for being gay, working full-time outside the home or suffering domestic violence; or that they should be prosecuted for choosing to give birth at home. Happy?

    • Sort of. We’ll leave the home-births to the women as it’s unique (notwithstanding non-male non-female gender considerations); and the title of the article would need changing if it’s to be gender inclusive 🙂 But in practical terms, if it means changing the URL then all links to this article will be broken, so in the greater good I’m prepared to let that slide 😀

      imho there is no rational argument against equality, the difficulty is on the boundary of individuals rights especially with children who have no voice. The point of the legislation should be to protect children, not to be a nanny-state [pun alert] in ‘normal’ situations. I’m inclined to agree with your statement about the legislation “I think overall it will probably do more good than harm”.

  8. I can’t speak for anyone else, but I certainly have no problems contributing towards the purchase of contraception or purchasing it outright, or else would simply abstain from intercourse until such a time as I could contribute. Personal responsibility plays a large part here, and I would feel the same whether it was a girl I knew well or if it was a sex worker or a one night stand (although the one night stand one would pose difficult with regard to pre-planning). It would also be subject to where it’s established that pregnancy is not wanted (i.e.: it depends on the nature of the relationship).

    As I say, I treat women with respect on an interpersonal basis, just I suppose I have a in-built barrier about questioning social norms. Don’t get me wrong, I can see a lot of positives in what you and Stephanie propose (excluding legalising abortion), but I fearful of unintended consequences, and a further lapse in the level of personal responsibility we should expect from our fellow beings.

    • So, just to be sure I’m picking you up correctly, you’re saying that every time a woman has sex with you for non-procreative purposes, you will not only ensure that contraception is used but will also give her €22.50 to get the morning-after pill. Every single time.

      You’re either (a) talking shit, (b) loaded or (c) not expecting to have very much sex, at least not with women who have anything other than baby-making in mind.

  9. I would like to think (b) and (c)! Maybe I’m unusual for the stereotype of men which you seem to have, but I’m by no means a sex fiend. If it was split, as you point out it’d be €22.50, I mean what’s that? The price of a basic lunch or a few pints for peace of mind for both parties engaging in consensual activity.

    If you’re not able to do a thing properly without taking unnecessary risks, then don’t do it. That’s how I’ve always looked at all things in life, and I would like to think proportionately, having responsible sex is a worth more than a lunch or a night on the town.

    Naturally, I’d prefer if sex took place within a monogamous relationship, where both parties either accept and are willing to take the risk but it doesn’t always happen. Whether it does or not, precautions should be taken.

    Do I accept that I’m perhaps a rare breed? Of course, but that’s how I believe we should all act. I’m not special, or wasn’t born with anything more than ordinary Middle Class background. But let’s face it, I’ve friends who are on social welfare who could more than afford to prioritise if they wanted.

    • I’d prefer if sex took place within a monogamous relationship, where both parties either accept and are willing to take the risk

      Being in a monogamous relationship doesn’t necessarily have anything to do with whether you’re willing to take the risk! There are plenty of people in monogamous relationships who don’t want children at all or who aren’t ready to have them at the present time.

      Leaving aside the question of whether you would really be willing to pay €22.50 every time you have sex (suffice it to say I really doubt that would be the case if you were having much of it), you can’t realistically expect everyone else to be able to afford that. I certainly couldn’t. It’s interesting that having already endorsed the present situation where abortion is available only to middle-class women and those who can somehow scrape up the significant sums involved in travelling abroad, you’re now basically saying that sex itself should be exclusively reserved for those able to pay for it. Kind of an odd position for someone whose first post on this blog condemned the pro-choice position as eugenicist, not to mention someone who has elsewhere claimed to think it should be illegal to bring money into the sexual exchange at all.

      • Lets just say my opinions are evolving the more I read. As I’ve said, you either do it right or you don’t do it at all. That’s my view and my practice, learned from the way I was brought up and common decency, so it’s the level of responsibility I expect from my fellow beings as well.

        Anything else is just careless and gratitious sex, for the pleasure of it rather than it actually having any meaning to any party. Almost every religious and moral system in the world recognises this.

        • You’re not the arbiter of why other people have sex, or what it means to them. It may be that it is impossible for you to have meaningful sex outside the context of a monogamous relationship in which children are desired, but that doesn’t make it impossible for everyone.

          And even when it is “careless and gratuitous”… so what? People engage with each other in meaningless ways of all kinds, all the time. What is it about sex particularly that makes this unacceptable? I’m looking for a substantive answer, not just another reference to “tradition”.

  10. I don’t think I have the kind of substantive answer you seek. I suppose it comes down to “who am I to question the way of things?” but then again the other side is “who am I not to question the way of things?”.


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