Seanad Éireann díospóireacht -
Thursday, 13 Feb 1975

Vol. 79 No. 7

Illegitimate Children (Maintenance and Succession) Bill, 1974: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Dr. Martin

The manner in which this Bill has come before us and is being discussed, has no doubt been a source of irritation and impatience to its proposers, particularly Senator Robinson, who has brought it before us. On the other hand, it has had a number of advantages, the chief advantage being that we did not need to rush to judgement on the matter. We had an opportunity to hear the debate piecemeal to ponder the arguments and even to read the reports of some of the first intermediary speeches. This has given us the time to contemplate it in all its dimensions. Indeed my approach to this Bill has changed since listening to the debate. When I was first confronted with it it seemed altogether admirable. I still think it is admirable in spirit, but I am not sure it has stood up very well to the stress and strain of debate and argument. In particular, I am thinking of three speeches by Senator O'Higgins, Senator FitzGerald and the Minister last night.

As I said, the spirit of the Bill is admirable. It bears that mark in social concern and compassion which is a feature of everything Senator Robinson brings before the House. Its obvious intention is to protect, indeed to rescue, some of our most vulnerable citizens, that is, children born out of wedlock whom we have already branded as illegitimate, though, as nearly every speaker so far has said, that brand is grossly inapplicable. It also seeks to protect the wronged mother of a child born out of wedlock and give the errant father a sense of duty and responsibility towards the mother and child. However, a number of flaws have been revealed in the Bill. I will not repeat them because they were admirably stated by other Senators, men of law who have both the language and the insight to marshal their arguments. I will merely refer to them without going into any great detail.

An obvious flaw is that there is no limit on the affiliation order. This seems to open the door to all kinds of abuses, many of which would affect the central unit of our society, the family—an institution which is very much under fire and pressure from many sources in the contemporary world. For instance, the question of blackmail which was raised by Senator Lenihan is still there. There is the idea that somebody after ten or 15 years could make a claim on the property of the family, of a wife and of children, who have no idea of the existence of the child born outside wedlock to the father. The claim in terms of property is considerable and the room for abuse seems to be very considerable also. A three-year, or at most, a five-year cut-off period is an absolute essential in a Bill of this kind.

Senator O'Higgins mentioned the family—the father, wife and children —which had worked together, built up a business and established an obvious and incontestible right to that property. Within the terms of a Bill like this they would be in a vulnerable position if a child of whom they have no knowledge came after the death of the father to make a claim on that property. That is an obvious case. Another aspect which has not been stressed, nor even mentioned, is the very acute suffering and emotional and spiritual injury which could be inflicted on the family making that discovery dramatically, indeed traumatically, after the death of a husband, or indeed during his lifetime. That aspect is not sufficiently catered for in the Bill.

Senator FitzGerald also raised the case of adultrine children. This had not been mentioned either nor is it provided for. That will require a great deal of thought and legal discrimination. There is also, understandably, in the Bill the assumption that in most cases the man is always to blame in the begetting of illegitimate children. I suppose he nearly always is to blame, but not always. I do not want to draw any kind of lurid scenarios as to how, when and under what circumstances illegitimate children are begotten. It takes the consent of two parties, except in the case of rape, to arrive at an illegitimate child. A certain kind of unscrupulous woman could act conspiratorially in that manoeuvre.

It is well know that women of a certain age who have not had children sometimes feel an emotional desire to fulfil themselves as women in that respect. I could imagine somebody who was either unscrupulous or unbalanced trapping a man in such a situation, perhaps with all kinds of verbal assurances that there would be no retribution and a case would never be brought against him. If later, there was a change of heart, then the man was not, primarily, the guilty party at all.

A married man on very bad terms with his wife and family if he was sufficiently bloody-minded could as James Joyce said "have his childer, everywhere" almost as a kind of retributive effort against the family. This is a melodramatic case but not impossible. Laws should be scrupulous and watertight on matters like this.

Senator Robinson expressed herself as extremely flexible and hospitable towards amendments at Committee Stage. The question facing us as legislators at the moment is whether it is better to go forward with a Bill like this, which has revealed certain cracks and limitations under the strain of debate, and hope to amend it at Committee Stage, or whether to wait for the Minister who says he has a large all embracing and over-arching Bill on family law coming up and assures us that all these issues are very strenuously under consideration at the moment. That is the kind of dilemma in which I now find myself; whether to vote the Bill into the Committee Stage—I certainly could not oppose it because the spirit is so admirable— or whether to abstain and to wait. I am tending towards the latter position, primarily for two reasons, the first because it requires a great deal of thought and is receiving consideration, and secondly, an emotional reason of my own—that in this age the central institution of the family is coming under considerable fire within our society. If this Bill were passed it may be dangerous, especially in the climate of strident and even vengeful feminism in which we are now living. The Bill is not wide enough in its whole conception of family law and all dimensions, and in its provisions it is too radical. As I said I am not certain if the best thing to do is to go forward and hope to amend it on Committee. I would rather to wait for the Minister's Bill; I intend to hold him to his promises and I hope when he brings forward the Bill he will, in advance, have secured the support of his leader and his Cabinet.

Mr. Russell

I do not propose to say very much because other Senators have said much of what I wanted to say. However, I am encouraged to say just a few words because most of the speakers up to now have been members of either the legal profession or academics so, perhaps, a person who is not a member of even the Leaving Certificate class, and certainly not an academic or a member of the legal profession might be permitted to say a few words.

Firstly, I welcome the broad principles of the Bill. Everybody who has contributed to the debate has begun in those terms. I add my voice of commendation to Senator Robinson and her colleagues who have, obviously, given this very sensitive and humane subject very deep study. The Seanad owes them a debt of gratitude for availing of the Seanad. There was a lot of talk yesterday about the lack of work being done in the Seanad and the lack of purpose which it seemed to have. The fact that Senator Robinson and her colleagues have gone to the trouble of doing a lot of research on this subject and introducing this Bill justifies, at least to some extent, the existence of the Upper House. I only wish more use was made of it. For that purpose, the introduction of Bills is a very fruitful field for this House.

In essence, the Bill seeks to extend the limited rights of the illegitimate child to succession of property under the 1931 Act and ensure that his position in law would be equal to that of the legitimate child. In this regard I share the views expressed by several Senators, including Senator Robinson, about the title of the Bill, which is unfortunate. Perhaps there are very good reasons for not having a simpler title, such as the "Legitimacy Bill, 1974". Instead of emphasising the illegitimacy of the child who happens to be born out of wedlock, the more positive approach, the desire to debate the rights of the legitimate child and within that debate, to consider the lack of rights of the illegitimate child, would have been a more positive and certainly a more humane approach. Perhaps, because of technical difficulties this was not possible.

The Bill rightly puts the emphasis on the need to right the greatest wrong, that is the disability suffered by the most innocent party—the child. In our desire to give equal rights to the illegitimate child and to ensure that the putative or admitted father is made fulfil his responsibilities, we must ensure that no wrong is done to any party. Senator Robinson, in the course of her long, comprehensive and, certainly to me as a layman, very interesting speech introducing the Bill, outlined what the purpose of the Bill should be. I refer to column 62 of the Seanad Debate of 4th December where Senator Robinson says:

What is necessary is a balanced appraisal of different rights and not the present totally onesided, totally discriminatory, totally unjust situation which excludes the illegitimate child.

Nobody could disagree with that. Further on she congratulates the Catholic Bishops of Ireland on having done their homework. She quotes from chapter 6, section 5, of a statement on family law reform at the Catholic Bishops' Conference as follows:

We are concerned with the rights of all children and that they should be treated equally. We regard it as unchristian that children born out of wedlock should, as a result of the actions of their parents, be victimised by legal distinctions between them and children born to married parents. Consequently, we wish to urge that the legal disabilities imposed on these children should be removed.

That sums up the purpose of this Bill. That this Bill goes far enough to remove these disabilities in such a way that no injustice is done to any party, is a subject about which I had some doubts.

My doubts in this regard are clouded by some of the arguments put forward by Senator Robinson and other speakers in support of the Bill in laying the blame for the present situation to some extent on Canon Law, as it affected civil law over the years, and not emphasising enough the society in which we live today and the society as it existed when the 1931 Act came into being. Whether it is Canon Law or civil law, it is the attitude of the society of the day that really influences laws. It would be very difficult to visualise a debate such as this taking place in this House in 1931. Perhaps 30 years from now or even later, if the Seanad still survives, it might not be an exaggeration to suggest that Senators of the nineteen nineties or the new century might regard us as very reactionary and possibly very conservative in our opproach even to this Bill. People's attitudes change over the years. It was suggested that the attitude of the nineteen thirties with its almost puritan approach to the question of the illegitimate child did not in any way stop the increasing rate of illegitimacy. Figures were quoted by Senator Robinson for 1961-71 to show that the rate of illegitimacy had substantially increased. I do not think it is quite fair to quote figures for that decade and say, in retrospect, that the Act of 1931 had no influence whatever on the rising rate of illegitimacy.

Like most other things today, the whole question of what is right and what is wrong and how people feel and think is dictated by the changing views and attitudes in our society. The changing composition of society itself and the growing urbanisation of society, influences people's minds. These rather than the laws made at the time influence what happens or people's views on rights and wrongs. The time is long overdue when we should look very hard at the unfavourable position of the illegitimate child in our society, and, without doing wrong to any party, to ensure that this unfortunate child—the innocent party—is fully protected and that his or her rights in society are equal to those of the child born in wedlock.

I could not agree with Senator Higgins who said that the term "family" was becoming outdated—I hope I am not doing him a disservice in saying this. He would rather we referred to the "household" rather than the "family". I hope I am not too oldfashioned in saying that I would strongly oppose such a change. The family in Irish society has a certain meaning as a basic unit of society. I would like to see the family extended to include the illegitimate child. Possibly the best solution of all, certainly the most desirable solution, is that where an illegitimate child is born subsequently the parents marry and the illegitimate child becomes a part of the family. But to term a "family" as a "household" reminds me of a census with a number of units in one house, in one room. The family has a particular connotation for our society and I hope it will always be preserved as such. That does not mean that the family cannot be expanded to include, if and whenever possible, the child born out of wedlock and given the same rights as the child born within wedlock.

It has been assumed in this debate that the putative or admitted father is always the party to be blamed. I do not think it is too fanciful to imagine a situation where a wealthy woman seduced a man perhaps in not very good circumstances and as a result of that love affair a child was born. If that woman marries some years later —and if one of the purposes of this Bill is carried out—within an unlimited period she can take affiliation proceedings against the father. In the meantime he may have married and raised a family of five or six children in wedlock and be in very poor circumstances. I do not think we should always assume the man is generally in the wrong. The woman could be in the wrong or both of them could be in the wrong or, in the right, depending on your point of view. All these circumstances should be considered. I would certainly not agree with an unlimited period for bringing an affiliation order. The period suggested by the bishops was three years and the English period is three years also. Somebody here suggested six years. I would go along with the idea of extending the period beyond three years but certainly not with no limitation.

In the immediate future we must remove the obvious disabilities—the lack of succession to the father's property, and a substantial increase in the present maintenance figures, which are far too low. The general situation should be looked at to ensure, in our rightful desire to assist the innocent party, that we do not do an injustice to any other parties involved. To some extent this Bill goes a good deal of the way but I do not think that it goes all the way. More thought should be put into this subject.

The Minister proposes to bring in a Children's Bill. Senator Robinson did the country a great service in bringing forward her proposal. The Minister stated that in some respects he proposes to go even further in this regard. On balance, it might be well to wait and see what he proposes to do. We always have Senator Robinson in the wings with a very human approach to these problems. We can always look to her and her colleagues to ensure that the Minister's proposals, if they are not up to the desired standard, and do not fulfil what we want to see done, they will put down amendments, or even bring in a new Bill at a later date.

Dr. Browne

I should like to join with all the other Senators in what is becoming a common ritual in this House of praising the initiative of Senator Robinson and her supporter, Senator John Horgan, in pointing out this kind of defect—and there are many of them—in our laws for which her specialist knowledge so well equips her and having the initiative and courage, because courage is required in some of the issues in which she has been involved, to bring them forward in spite of opposition and having them debated.

As Senator Martin said, this has been a very interesting and very useful debate. Senator Robinson has demonstrated, once again, the value which the Seanad could have in people with specialist knowledge— trade union, university, industrial, political, architectural, engineering and so on—who could suggest subjects which might be usefully discussed here and treated in an objective and, as far as possible, in a non-party political sense.

My contribution is concerned with some of the points made in the debate because the case made by Senator Robinson seemed to me to be so compelling, so magnificently documented and based on her own professional knowledge that it would be very difficult to improve on it if a person was not a specialist on the subject of law. Of course the tragedy of the illegitimate child in our society is one which should be dealt with as soon as possible.

The way in which the debate has been conducted is of interest to me because if one goes back through the record of this law, if one thinks of the laws in relation to illegitimacy in the country since the State was formed and if one considers the attitudes to these kind of provisions in the context of similar laws affecting our lives in a very fundamental way, then the treatment of the debate here has a special significance to me. I was struck by the absence of any acrimony and in particular, the absence of any opposition. The absence of opposition was the question which puzzled me most, because illegitimacy is a sensitive subject. It is a subject which has been debated here and in the other House on a number of occasions, either directly or indirectly, in the making of various laws, in 1930, 1952, 1964 and 1971. On all those occasions, under the control of Ministers — at least one of whom is now in this House — the very grave defects to which Senator Robinson's Bill points in a totally unequivocal, incontrovertible and now universally agreed way by all Members of this House was not referred to to any extent in the discussions on the making of these laws. Certainly no successful attempt was made to amend or to eliminate these grave defects in our laws. They existed then as they exist now. On consideration the same defects were reintroduced, repeated and retained. One must be permitted to wonder why it was that legislators should have considered the position of the unfortunate child born out of wedlock in our society, considered the detailed offensive defects, discrimination against that child, and then ignored them and made no attempt to change them. Why was that? These are not men in the Shakespearian sense. These are all honourable men. Why is it that they, year after year over the period of 50 years, have waited until now, until Senator Robinson produced this Bill? Why have they done that? That is one of the questions which has exercised my mind.

There were two references which interested me and I should like to refer to one briefly because of its importance, and that was the reference by the Minister, Deputy Cooney, to the lecture by Miss Rowe to which Senator Robinson referred. This was the case made for legal adoption in an attempt to find some solution for what really is an insoluble problem, the problem of the illegitimate child. It cannot be solved without suffering I think that is true. Senator Robinson made that point also. Somebody must suffer because the illegitimate child is born and it is a question of who can be helped to suffer the least.

One thinks of the problems of the child, of the parents, of the family, of the household—all of these have been referred to. This is where I suppose, I could be of some little help to the Seanad. I would like to be of help to the Minister. I would reinforce Senator Robinson's caveat to the Minister's suggestion that the case made by Miss Rowe for legal adoption rather than for the mother to keep the child is not justified in the light of whatever knowledge we have on this very complicated subject. The reason for that is the appalling complexity of the pyschodynamics of personality formation, the factors which determine the balanced integrated personality.

In spite of the years which the greatest minds and intellects have been devoting to try to find out what is it that makes each of us what we are, with all our defects and foibles, characters and characteristics, the truth is that we simply do not know. We do not know why one child of the stable family becomes the distinguished statesman, businessman or leader of men and why another child born to the same family becomes a delinquent, a psychopath, or a criminal. Enormous study has been given to this subject and the present position is virtually a stalemate.

There are two great authorities. On the one hand one group could be cited believing in the necessity for the mother to retain the child in the home. On the other hand, there is another group who make the completely opposite argument to this: that in certain circumstances it can be emotionally healthier for the child to have a stable relationship, irrespective of whether or not it is with the parent. Being somewhat old-fashioned, I tend to side with those who believe in the necessity for the stable family. But all the evidence is building up against this belief. The family is, as Senator Martin said, under threat for well-established and documented reasons. The hopes that were held for it, have not been realised, perhaps, under the stress of modern society. It is quite likely that the whole ideal of the family will have to be reconsidered. The renaming of it as the "household" rather than the family could be a useful advance.

Even in regard to the stable home, despite the enormous corpus of work available very few people are prepared to say what are the chances within the family of one child over the other of achieving emotional maturity in his set of circumstances. This puts us in the extraordinary difficult position in relation to the illegitimate child because there is the added stress of the unfortunate lady with her sense of guilt which is imposed on her by society. There is great pressure on her to opt for adoption. All the economic pressures are to force her to give up her child. This appears to be the humane solution: to find a stable family, a childless family, and to encourage the lady to hand over the child to this stable home. The argument is that it is the best chance for her child, that it is hard to rear a child in isolation. As Senator Robinson pointed out, there is quite a percentage of adopted children who do not survive the emotional separation involved in leaving the mother. There is the stress on the mother, which is very difficult to assess. She lives with that for the rest of her life. She has no idea whether her child will be well cared for. Giving a child for adoption is a lottery. She feels she has failed the child. The experience of gynaecologists who have come across this problem on many occasions is that, when it comes to handing over the child for adoption, it is an appalling ordeal for the unmarried mother.

Broadly there are two — and this is speculation—patterns for the development of a child in its relationships. One is where the child is taken into adoption and finds it is an adopted child. It is understood that the attitude of the child becomes one of self-analysis. One of the most pathetic things I have come across in my dealings with young criminals, young psychopathic children, is this questing for their mother. They ask "Who am I? Who was my mother?" It is terribly distressing and a question which can never be answered for them. It certainly preoccupies the minds of many of them causing them untold stress. In psychological terms there is the possibility of the child feeling he has committed some appalling crime. He idealises the mother. The mother could not have neglected or deserted him without very good reason, the reason being the terrible crime he committed, the great sin he committed. From that stems the guilt and depression. The depression usually leads many of them to the mental hospitals. We then have the other side of the dilemma. She keeps the child and the child grows up to find that he is fatherless, that he was born out of wedlock. Even though the mother may have made many sacrifices for him, he then begins to idealise the father who deserted him. He feels that the father could not have left him unless compelled to do so by the mother. The child then turns against the mother, and great unhappiness results. It is not a simple problem.

I hope the Minister will pay some attention to the warnings given by Senator Robinson. None of us can tell him what is certainly the truth. If he decides not to accept this proposal and to bring in his own, he should be very cautious in assuming that, because there are facts in relation to the question of legal adoption as opposed to the single parent bringing up the child, that they appear to be to the advantage of the adoption rather than the unmarried mother bringing up the child.

First of all, there are the emotional problems which we know very little about and which predetermine the future personality of the child. Many of them end up, if not mentally ill, with some form of criminality, psychopathy, homosexuality, male and female personality disorders, prostitution and so on. All of these are one part of the problem the Minister is facing in attempting to try to do whatever is right for the child.

Secondly, there is the fact that the unmarried mother in our society and many other societies has not had any real help in proving her capacity to give the child a stable home and a stable emotional background which could give the child the best chance in life and at the same time not put her into the position of mourning the loss of the child for the rest of her life and living in considerable distress as a result.

There is no easy solution to this dreadful problem except that where the lady decides to keep her child. In a society such as ours it is odd that we have never done anything about this problem. Listening to the debate here on contraception and the indignation at the suggestion that we should try to reduce the incidence of illegitimacy and so on, the obvious thing for our society to say would be that we do not believe in these things— therapeutic legal abortion, contraception or whatever it is, because they are not necessary. If the girl does happen to have an illegitimate baby we will gather round her and we will put all the resources of the State at her disposal in order to give her every possible chance to remain with the child and be a good mother and to remove from her the physical and economic worries of being an unmarried mother. We have never done that. In my experience most of these young girls go to England, where they find a really Christian response to their dilemma. They find loving care and consideration from what essentially are foreigners. They find this at the present time in relation to therapeutic legal abortion. This is not the only occasion on which we have this extraordinary ambivalence of protestations of Christianity and then total failure to live up to it when the real cases come before us.

The amendments proposed in Senator Robinson's Bill are the very least which we could do. I want to pay tribute to the organisations which have at last come together in order to help these mothers in the educative work they are doing in trying to reverse the appalling stigma attached to the unfortunate innocent child. They make an attempt to get the expectant mother taken into a family. In society there are 500 of these ladies in homes. There is need for homes for 4,000. A very good illustration of a Christian attitude to this problem would be if society could say that there were 5,000 expectant mothers and that they were in 5,000 homes in Ireland. Then we could talk with a little more authority on this whole question of what Christ taught about the Mary Magdalens in His life rather than what we are taught He did teach.

That brings me to a second general point. It was referred to by what I always consider to be the extreme right wing Catholic opinion in this House. I know people will take exception to my use of the word "Catholic" in our non-sectarian society but it is important to make a distinction between the various brands of Catholics we have in our society. I do not do this in any pejorative sense. I am doing it simply to make a distinction, because it is an important distinction, as I will try to show later on.

I found Senator Michael O'Higgins's bland acceptance of the provisions of the Bill somewhat irritating. He said that we should not approach this in any craw thumping, sack cloth and ashes way. What he was saying was that there is no reason for us to examine what we have done and express our regret. As they say in the confessional, did he give any indication of any purpose of amendment he has as a result of discovering that, as a legislator over many years here, he has been party to this victimisation of the innocent? Instead of showing any sign of any purpose of amendment in the future, he cautions us not to move too fast and to be careful not to interfere with property rights— to take our time because there is no great hurry. I do not know how many times in this and the other House I have had to use the phrase in Dan Breen's book: "How easy it is to rest on another man's would." This incapacity for concern for abstraction of social justice affecting other people is depressingly common in our society. They can wait. They have waited 50 years and therefore they can wait another It is an extraordinary philosophy but this business of acceptance of hardship always is by people like Senator O'Higgins. It is always the acceptance of hardship for somebody else—it is never involved with themselves or with their families and I sincerely hope never will be.

These things can happen to any of us, but that still is not the reason why I think we should act. I think eventually it is Christian concern, if there is any such thing, for people who are in trouble and who need our help, and we are the only people who can do that. There should be no limit to that help and certainly there should be no delay in giving that help.

Senator O'Higgins, in the course of his speech, made a number of statements, important in their effect. The most important one I think was that the laws should reflect the consensus thinking of the people. Senator Russell seemed to support that when he talked about laying the blame on Canon Law and not enough emphasis on the society—whether it is the attitudes of society which influence the laws. Then Senator Russell talked about people's attitudes always undergoing change and he went on to say that what is right and wrong is dictated by the changing attitudes of society.

Is that true? Is that how things are really done in our legislature? Senator Russell appeared to disapprove of the fact that we were laying the blame on Canon Law for the persistence of this kind of legislation on our Statute Book. Is it an unfair charge? Senator Robinson made the point that this law in both Britain and here originated in Canon Law and, of course, because of the mass illiteracy of European societies in the middle ages Canon Law could be the only law because these were the only people who were competent to make laws.

That changed after the Reformation in Britain but it has persisted here, and I think that if one looks at Canon Law even as it is at present one will find that the illegitimate child is anathematised and classed with in their time, defective people in society, the insane, persons possessed of the devil, bigamists, men who had incurred the infamy of the law, public executioners. A general résumé of the attitude to the illegitimate adopted under Canon Law was that the child was to be used to instil moral behaviour in others. This dazzingly inhumane, cruel and barbarous provision is still effectively a provision of Canon Law. Anyone who tries to tell me that Canon Law is irrelevant or, what is worse, irrelevant in the formation of the pattern of our civil law, would have a very hard Catholic case to prove.

The really odd thing as far as I am concerned in listening to this debate and reading what I have not listened to is the complete difference which I met. In the Dáil, Deputy O'Connell, when attempting to introduce the Bill on contraception, and which Senator Robinson and Senator Horgan met by introducing their Bill on contraception, found different hostility and unpleasant imputations — reflections which permeated a great part of the debate. If they are serious about illegitimacy, contraception would be a complementary provision. Why is one accepted with considerable enthusiasm by Government? As I said, Senator O'Higgins has a notoriously conservative Catholic opinion — I only use the word "Catholic" in relation to Canon Law. Why is this Bill received on this side of the House, by the Fianna Fáil Members, a number of whom were most influential in the rejection of what I say should have been a complementary piece of legislation, the Contraceptives Bill? Is it a coincidence? Is the fact, referred to by Senator Russell and Senator Robinson, just a coincidence that, I suppose for the first time that I have had any dealings with them, the Catholic Hierarchy on this occasion have declared their support for a piece of enlightened legislation, the need for enlightened legislation? Is that the secret behind the new liberal attitude in this House, the secret that they have been allowed off the leash and that they are permitted now because they are allowed off the episcopal leash? They are allowed to support this important piece of legislation. Because it comes up contemporaneously with the Contraception Bill, slightly preceding it an order or an instruction to the contrary was issued.

Senator Robinson and I ran into total opposition, virtually total opposition, effectively total opposition. It is unrealistic, verging on dishonest, for Senator Russell to imply that this decision in relation to the persistence of these provisions regarding the illegitimate child in Ireland is not directly and exclusively the responsibility of the totally obscurantist attitude of the Catholic Church and its Canon Law, over the years, and this is not an exceptional set of circumstances. How on earth can he say that, in the context of the continuing obstruction to the other piece of legislation, the Contraception Bill, in the context of our attitude to a provision particularly relevant to this discussion now, a provision which held that we should seek to educate the mother in respect of motherhood, a provision of the 1947 Health Act? Why was that killed? Not by the consensus but by the decision of the Catholic Hierarchy.

Education of mothers in respect of motherhood, illegitimacy, the unmarried mother, is the obvious need if one is serious about not using contraception but helping young girls not to have babies, surely the education of youngsters in schools or mothers or intending mothers, education in respect of motherhood, either in sex education on one hand or education in this other very complicated question of the psycho-dynamics of personality formation—why a child is likely to be one kind of child and not another. A most important provision in relation to women and mothers comes before this House and the cry is: "Vote it down because it is in conflict with the Canon Law."

Most of my life I have attempted to promote the advance of social thinking in our society under the general theme of the welfare State, of the welfare society—education, health, care in old age, housing, and so on. This, again, was opposed. We could do nothing. Everything from old age pensions to free education was an interference with Canon Law and not the rights of the people. For 20 years and more I have pursued and attempted to make the case against corporal punishment in schools but this also was a necessary part of the educational system—the punitive, repressive kind of education.

An Leas-Chathaoirleach

I am afraid the Senator is going too far from the topic of the Bill.

Dr. Browne

What I am trying to do is to show that in relation to this legislation and other important legislation, the case made by other Senators had been that legislation is, and should be, a consensus of opinion; it should represent a consensus of opinion. I am making the case that that is not true. I am trying to prove it by giving detailed specific instances. I have had to try to help young people in the witness box on charges of having tried to take their lives — suicides; I have had to commit people to mental hospitals to save them from the courts, to save them from going to prison. That has been in my time, because suicide is a sin.

There are other matters which will not get through this House; some of them will not get to this House or the other House either — we have enough experience to know that—because the bench of bishops and not the concensus decides about these things. I dislike having to say these things because it will be said that I have a monomania about these but it happens to be true. For instance, what chance has a Bill that I would like to introduce and hope to introduce on homosexuality of getting through here? Another mortal sin. What hope has a Bill on a very desirable and badly needed therapeutic, legal abortion of getting through here? What hope has a Bill on divorce of getting through here?

It is only recently we have ceased to be the laughing stock of Europe because of our absurd censorship legislation. Whose fault was that? Who changed? Did the concensus change? Who initiated the change? Who tolerated or permitted the change? You all know as well as I do. So for all of these badly needed changes how can we get consensus which would permit or accept change? How can we when the consensus is educated by those people who have those views—views which we now know, which we accept here?

Just take the specific instance before us, illegitimacy. We now know the Canon Law attitude to these children was cruel, repressive, totally unjust and its effect quite inestimable. It is impossible to say what suffering has been caused by the monumental stupidity and insensitivity of the men, the bishops, who made us here over the years do these various things because we were frightened of them. We did not exercise our own independent judgment to see that a child born out of wedlock is a precious and wonderful thing, a new human being. We do not care where it is born, it belongs to us, the society. It is our responsibility to protect that child from every possible result of whatever you would like to call it—the transgression, if there is one, of men or women.

Senator Martin made the point that whether the man or the woman is responsible for the blame, the business of blaming people is unimportant, it is totally irrelevant, but above all to blame the child is unthinkable and totally unacceptable even in this House. But what depresses me, what so much upsets me, is that there is just as good and compelling a case and as many humane and compassionate arguments for therapeutic and legal abortions, for the homosexual, for the need for divorce, for contraception, for these other badly needed changes — badly needed changes which we do not appear to have the moral courage here to decide for ourselves.

I am afraid that while I do not take back anything that I have said in praise of Senator Robinson, one has to conclude that this debate will go down in the records of the Seanad as simply another manifestation of the puppeteer quality of the Oireachtas in the Republic.

Cáit Uí Eachthéirn

Is mian liom cúpla focail simplí a rá. Níl mé le dul chomh doimhin sa Bhille agus a chuaigh an Seanadóir FitzGerald agus Seanadóirí eile.

As I have just said, I want to welcome in principle the idea behind this Bill because to date the innocent child of an unmarried mother has had a cloud over it all its life. I do not believe that any innocent person, a child or other person, should suffer in any society, and I certainly do not believe that children should be penalised for the doings of their parents. As the law stands the illegitimate child hardly exists. It has not got a proper birth certificate, it must take its mother's name, it cannot inherit property and it must suffer many other disadvantages in our social system.

Many Senators are glad that there is now legislation which gives support to the unmarried mother and to her child. These unmarried women who keep their children are facing up to their responsibility and it is only fair that society should help them to take on this very heavy burden. What Senator Robinson has proposed is very right and Christian, but I have grave doubts if it can be implemented even if this Bill is passed. I believe that in practice it cannot be implemented because it is near to impossible to catch up with the unmarried fathers, 99.9 per cent of whom do not want to recognise their child. I should like if Senator Robinson would tell us does she envisage enforced blood tests. I am afraid if this became law many of the fathers will abscond and it will be very difficult to catch up with them.

My view of the whole thing is that there must be a change in public opinion and attitudes before we can get this cloud and stigma taken from the unmarried mother and the illegitimate child. I cannot see how we can catch up with the fathers.

The only solution, and the main one, to this great social problem is that we should have more and more education on the dignity of the person. We must teach that a woman is not a chattel to be taken up one night and dropped the following morning. Girls need to be educated in this manner in school, and so do the men. The main feeling is that once a person loses his or her dignity or sanctity it is very hard to get it replaced. For that reason we should preach more and more that life has a special dimension and that it is there alone that one finds real happiness, not in fleeting moments that produce an unwanted child. We should also teach this generation even more so than past generations that bringing children into the world is a very serious undertaking and should not be undertaken without very great concern and great thought.

There were a few references made by Senator Martin to exceptional cases. We all know that hard cases make bad laws, especially if we were to legislate for the cases that Senator Martin has in mind. I am surprised at Senator Noel Browne putting all the onus on Canon Law. I think that was refuted ably by Senator Alexis FitzGerald yesterday bringing in the question of contraception and its passage through both Houses and connecting it with this Bill. I do not think it makes sense because two wrongs never make a right. I hope all round, with better education, that we will see fewer and fewer unmarried mothers and illegitimate children.

I should like to congratulate all the organisations that are helping unmarried mothers. I would also like to congratulate all parents who have adopted those children and who have given them happy homes.

As the Minister and some Senators have said here, this Bill as it stands could not work, but at the same time we should give all possible support to Senator Robinson, because the ideal and the principles enunciated in her speech are very sound. I hope when the Minister introduces more changes in Family Law many of Senator Robinson's ideas will be incorporated.

Mr. Deasy

I am a little apprehensive about speaking on such a Bill seeing that it is so legalistic. The first eight speakers were either professors or lecturers at university or else lawyers. For a layman to comprehend the finer points is a little difficult, but I speak because I wish to support certain aspects of the Bill. Senator Robinson is to be complimented on trying to right the wrongs which exist in this field. That the law as it stands does not treat all our children equally is to be deplored. I think we should see that the Constitution is obeyed in this respect, that all children are treated equally. It is wrong that the child who is born illegitimate — the term is as vulgar as it sounds — has not got the right to succeed to his father's property. It is also wrong that if affiliation proceedings have been taken, the child cannot be maintained after the age of 16. I should like to see an extension of this age, especially in this day of higher education, apprenticeships and so on.

The fact that the child or children of a marriage which has been declared by the courts to be null and void can suddenly be regarded as illegitimate is again unjust. There are many stigmas attached to illegitimacy which should be got rid of, and maybe this legislation would be the forerunner of getting rid of the remaining injustices. We are all aware of how the mothers of such children are ostracised by society at large. This leads to a great strain and we should do all in our power to end this discrimination.

I am glad to see that the Hierarchy are very much aware of the shortcomings of the existing legislation and have made it known that they would like to see changes. What the idea of the existing legislation was is difficult to comprehend. It seems to be to stop or prohibit adultery or promiscuity. But from the figures available it has not had this effect at all. I have been looking at some of the statistics quoted and we see that in spite of this repressive legislation the number of illegitimate births here has doubled from 1961 to 1971. That, notwithstanding the fact that a large number of women have gone to Britain and obtained abortions and to have had their children born there probably in much better conditions and out of the public eye here.

The present legislation has not been successful and it has discriminated greatly against innocent victims. I look forward to a more enlightened set of proposals. Senator Robinson's are excellent but from what the Minister for Justice stated last night they are not comprehensive enough, but I endorse the move to liberalise the law as it stands.

Mrs. Robinson

I should like to begin by thanking the many Senators who took part in this debate for their contributions. Unlike the Minister for Justice, I think that this has been a very constructive, very far-reaching and, for me, a very heartening debate in the Seanad. I sat here throughout it and I did not find for one moment that it was boring, or as some debates can be, repetitive. The contributions were very individual, very thought-through and, in my view, treated this important social issue with the seriousness and concern it merited. Every single Senator who contributed, and the Minister for Justice in his contribution, accepted the broad principles of the need for change in the law relating to illegitimacy because the present law is unjust and discriminatory. They also accepted the need to improve the maintenance provisions relating to support of children born out of wedlock and the need to give property and succession rights to those children. There were criticisms of the detailed proposals in the Bill and there were differences of view about how far one might go in relation to those areas but it is most heartening, and must be of support to the Minister, to know that the Bill was received in this way by the Seanad.

I had an opportunity of consulting my co-sponsors of the Bill, Senator John Horgan and Senator Michael D. Higgins, in order to decide what our attitude should be in the light of the debate and, in particular, in the light of the Minister for Justice's contribution last evening. We have decided that, in view of the views expressed and in view of the undertaking by the Minister on the record of this House last night that there is a Government Bill at an advanced stage of preparation — that heads of this Bill on family law reform have been drawn up — it would be appropriate for us not to put this Bill to a vote but to withdraw it in favour of the Government measure. However we propose to take the advice given by Senator Russell this morning to wait in the wings, and if the Government do not introduce a Bill this session, as the Minister has undertaken, then we will have no hesitation in reintroducing another Bill on this subject matter, a Bill which would be improved by the constructive suggestions and criticisms made during this debate. I think that this is the appropriate stand for us to take as private Members who have introduced a Bill in order to bring the matter to the attention of the Seanad.

The Department of Justice have much greater resources and have much greater possibilities of bringing in a comprehensive Bill, and I welcome the fact that the Minister has said that the Government proposal will go further in many respects than the Bill which is before the House today.

I propose now to deal in some detail with the contributions made by various Senators. It will not be possible to do this as adequately as I would like because, although I have in some cases the written report of the contributions, there were a number of important and significant contributions last night and this morning, and I can only rely on my memory or on some notes taken in order to deal with the points raised. Senator Martin referred to the way in which this Bill has been debated and to the fact that there might have been some frustration because it had tended to be debated late at night on the evenings of the 4th December, 17th December, last night and this morning.

For that reason it has inevitably been a disjointed debate, nor has it been possible for the Minister to be present for a large part of it. However, I agree with Senator Martin that there are some definite advantages in this. It is an advantage for those who wish to contribute later in the debate to be able to read what the sponsors of the debate may have said. Some people who had no intention of contributing were influenced by having had the opportunity to read the earlier speeches made, and they then participated in the debate and made their own contributions to it. I accept that Government business has priority; I accept that there are difficulties in arranging time for debates put forward by private Members. There is some advantage in being stuck in at the end of an evening's business on different occasions.

I would like to refer to the detailed submissions made. Attempts have been made to criticise the Bill for things which the proposers of it knew it did not propose to do. For example, Senator FitzGerald said that this Bill would not in fact abolish the concept of illegitimacy. He did not pay sufficient attention to the emphasis which the sponsors of the Bill had placed on the sad fact that from the title down to the limited contents of the Bill it did not purport to abolish the status of illegitimacy. It was lumbered with this very ugly word, and suggested the minimum which should be done as a matter of urgency to change the law by removing patent injustices and discriminations in the law.

To take up a general point made by Senator Noel Browne, each of the Senators who contributed argued strongly that the present law is unjust and discriminatory. But there was a tendency to view this as a sort of abstraction: it affected people who are used to hardship; there was no critical urgency about the matter. One gets the impression from the Minister that it is not as high as it might be in his list of priorities. One does not get the sharp edge of urgency which could be expected when it was so clearly stated that the law is unjust and discriminatory and that that injustice and discrimination affect the children of this country. If we are capable of treating this as a matter of abstraction, if we are capable of tabulating the injustice so clearly and then sitting on it without attempting to change the law, one is forced to come to rather cynical observations about the lack of voting power of the particular people affected, their lack of political weight within the system which might generate the necessary degree of urgency.

I would like to thank my co-sponsors, Senators John Horgan and Michael Higgins, for their full contributions to this debate. They both so clearly emphasised that this is a very limited Bill. They showed in their approach to it and their approach to the necessity for change in family law that they are prepared for much more considerable change and for a more comprehensive approach. I would join with them in the spirit in which they sponsored this Bill.

Senator West welcomed the Bill because it would help to dissipate public prejudice about illegitimacy. He made a very valuable observation about recent attempts to change the law in social areas in this country. He said at column 96 of Volume 79, of the Seanad Debates of 4th December, 1974:

I mentioned in a previous debate of this nature that our legislators have run away from the problems in this area. This is highlighted by the fact that the two most important changes which have taken place in connection with family law have been made not by the Oireachtas but by the Supreme Court, declaring two particular pieces of our legislation to be unconstitutional. One was concerned with the availability of family planning methods and the other was concerned with the adoption of children by couples of differing religion.

He continued:

It is fair comment and criticism to make of our legislature that we have not been sufficiently concerned and sufficiently prepared to deal with the need for reform in areas of family law, areas of social concern, and we have to that extent government by judges, legislation by judges, in the sense that laws are declared unconstitutional, sections of an Act are declared invalid as being repugnant to the Constitution.

I found this comment very interesting because for those who study law and institutions — and there has been certain criticism of the legal way in which this Bill has been argued — it is worth noting that an analysis of the law and institutions either of a country or of an international organisation such as the European Community or the United Nations, would show that it is a weak factor if the initiative for change and reform has to be taken by judges. That is a weak aspect of the structure because it is the legislature which has the primary responsibility and the possibility of a much broader and more comprehensive approach, of having a balanced approach to a change in the law; whereas a change made by judges must of necessity be isolated from the general context, must relate to the particular case that has been brought, and indeed in some cases may not be a very constructive change in the law because it is not related to the broad social context. This can happen in relation to trade union law. In the United States there are examples where the legislature has not responded to the economic and social change in the society and it has been left to the judges to make changes by finding existing State laws repugnant to the Constitution of the United States. I would agree with Senator West that our legislature has not taken the initiative in relation to reform of family law. As a consequence it has been left to the individual to bring an action before the High Court and left to the judges of either the High Court or the Supreme Court to advance our law in these important areas and of necessity this must be done on an ad hoc and limited basis.

On the evening of 17th December Senator O'Higgins spoke on the Bill. Again I was heartened by the fact that he welcomed the principles in the Bill and expressed himself in support of these principles. However, I would differ from him in his attitude towards the question of whether a public consensus is needed for a change in the law. This point was mentioned by Senator Noel Browne this morning but I would like to deal with it in some detail because I think it is important to clarify the question of whether reform in the law must await a general consensus or whether law itself has a social function and can advance social attitudes in a particular area. Senator O'Higgins said at column 179, Volume 79 of the Seanad Debates:

By and large it is true that our legislation, by whatever Government introduced it, was a fair reflection of the consensus thinking at the time of the introduction of the legislation. This holds true for most social questions. It is true generally for our legislation. It may be that, as times change, thinking also changes and new thinking by those in Government will produce a different type of legislation. It is right that legislation should reflect the consensus thinking of the people.

That is a much too limited analysis of the role of law, and I would like to refer to the views of some academic lawyers on this question. In particular, I would like to refer to a recent publication called Law Reform and the Law Commission by J.H. Farrar published by Sweet and Maxwell in 1974. Chapter 6 of this publication deals with law reform, public opinion and the underlying problem of social values. It begins—

In a modern democratic society it is almost axiomatic that there is a close but complex relationship between law, public opinion and morality and that there is a constant dynamic tension between them. Thus although law tends as a whole to reflect many aspects of so-called public opinion and to change with it, there are other times when law itself changes public opinion or at least is used to attempt to change public opinion as for instance with race relations. There are times when law defies a substantial volume of public opinion. Possible examples might be the abolition of the death penalty, the Industrial Relations Act of 1971, and the European Communities Act of 1972. There are also many situations where the law must postulate rules where there is no clear guide from public opinion, for instance, many rules in real property.

I think this is a much more subtle and comprehensive analysis of the relationships between law and public opinion, and J.H. Farrar goes on to deal with this question of consensus. He says at page 69 in the same chapter —

Over the past 100 years dogmatic consensus has broken down and made way for relativism. The increasing role of the mass media has popularised the knowledge of the existence of variant beliefs, codes and standards. The areas of certainty have narrowed. In order to show the variety of all efforts to found rationally an absolute and universal morality, the varieties and contradictions of moral rules recognised at various times and in various societies had to be systematically described. Thus the field of opinion has widened and that of consensus has diminished.

I think this is a very important factor; that there is much less consensus in the absolute sense both in this country and in the world generally than there was even 50 years ago. If we were to wait for that old-fashioned consensus to be there before we could make a change in the law, then I believe that our possibilities of change would be very limited and our concept of the role of law and the social function of law would be a very limited one. I would prefer to say that if it is agreed, as it was during this debate, that the law is unjust and discriminatory, then one does not have to wait for some public consensus. There is a function in changing that law and leading public opinion in the matter. It is possible in this way to give law a more dynamic role.

I was encouraged by the fact that Senator O'Higgins agreed with the underlying principles of the Bill and would like to see a change both in relation to the improvement of the affiliation proceedings and also in relation to property rights, although he saw problems and difficulties in the particular formula of the Bill for giving property and succession rights to illegitimate children. Senator O'Higgins was in favour of a three-year time limit on the bringing of affiliation proceedings, and I would like to deal with this matter at this stage because it was a question raised by a large number of Senators who contributed. Senator Lenihan was in favour of a six-year limit, and Senator Alexis FitzGerald was not dogmatic but was in favour of some limit on the bringing of affiliation proceedings.

I think this is a very important question because it depends really on the view one has of the affiliation proceedings. If the emphasis is placed on the punitive aspect, that the father must pay for his conduct; that if the father has an illegitimate child and must pay for it, then we must protect the father from this punitive consequence by having some cut-off period. In this way he will not have this threat hanging over him. This is the attitude and viewpoint of the Senators who referred to the time limit and who wanted a time limit of a reasonable period. However this attitude fails to place the appropriate emphasis on the rights of the child concerned. The child is looking for the normal relationship with a father, a relationship which includes a right to support and an expectation of continued support during the time when the child is in continuing education. We would all be astonished if somebody said that a child born in wedlock could not have that reasonable expectation provided his father had property and an income.

I believe that the Senators who saw such a very strong need for a cut-off period and a time limit were not at all viewing the matter from this perspective. If they had been, they would have found it much more difficult to place a time limit on such a right. You do not cut off the right of a child born in wedlock to support from its father, until that child no longer needs support. If the child born in wedlock had not, for one reason or another, been getting support from the father or if the father had been unable to support the child at all or had been physically away in some distant country and came back five years later, it would be inconceivable that one would say that, because there has been a five-year gap since the birth, the child born within wedlock has no right to that support. Senators who expressed such a strong need for a time limit ought to realise that this is the perspective in which they have to consider the matter. They must consider that they are effectively putting a time limit on the rights of the child, a time limit which they would consider very arbitrary, unfair and unacceptable if that child was born within wedlock.

It was proposed in this Bill that there be no time limit, that the right of maintenance and the right to bring affiliation proceedings to secure maintenance should extend for the duration of the dependency of the child. If one analyses in more narrow detail the objections put forward to this, the first objection is a legal one. In essence it is that the longer the time that elapses after the birth of the child, the more difficult it becomes for the mother to furnish proof of paternity; and also the more difficult it is for the father to rebut the evidence of paternity. This is a practical problem which would resolve itself because, if adequate proof of paternity is not forthcoming, then no affiliation order will be made. If a mother tries to take affiliation proceedings ten years after the child was born, the court will rightly question why proceedings were not brought sooner. If there is not adequate proof of paternity at that stage, then in a practical way the mother concerned would be barred from getting an affiliation order and the child would not as a result receive maintenance from the natural father. The argument that it would be difficult for the natural father to rebut paternity — a fact Senator Alexis FitzGerald dwelt on last night — is not a strong legal argument. Indeed, it is an argument I would to some extent fault him on as a lawyer, because it ignores the fact that the burden of proving paternity rests on the mother. Disproving paternity is not a burden on the father. The ordinary rules of evidence would provide adequate protection for the father, the defendant in the paternity suit.

Senator FitzGerald seemed to find something sinister in the fact that the Bill did not provide in its terms for blood tests. Far from there being anything sinister in it, if this Bill had been going on to Committee Stage I would have welcomed an amendment on Committee Stage to provide for blood tests. I am very much in favour of their introduction and hope the Minister will include provision for blood tests in his Bill.

There are serious practical problems involved in having a fixed time limit, whether it be for three or six years, or any other period. For example, when the child was born out of wedlock the mother might have had a good income and might not have wished to bring affiliation proceedings against the father. Later she might lose her job, fall ill, become insane or be unable to continue on her own. She might be the sole financial support of the child but become unable to support him. This could happen when the child was three-and-a-half years old. What would happen in that case if the three year time limit had been introduced by the Minister in his proposed Bill? It would be considered quite unfair, unrealistic and totally incomprehensible if this were to happen in the case of a child born in wedlock — that that three-and-a-half year old child forfeited forever all rights to the support of his father. The time limit is a concept which only fits into an attitude which views the whole affiliation proceedings as punitive — punishing the few putative fathers caught by this procedure — rather than as machinery for maintenance for a child in order to extend that child's right to support, and to bring that child into line with children born in wedlock who have such a right to support.

The next Senator who contributed was the Leader of the Opposition, Senator Brian Lenihan, I was grateful for his strong statement of support for this Bill on behalf of the Fianna Fáil group in the Seanad. In the Seanad Official Report, column 184, volume 79, he said:

I should like to say at the outset, on behalf of my group in the Seanad, that we welcome this Bill totally in respect of the principles enshrined in it.

Obviously this is very encouraging. It must be much easier for a Government to bring in a Bill to reform the law in a particular area when that Government are aware that the Opposition support change, and support it as wholeheartedly as Senator Lenihan was prepared to do. I dealt with his proposal that the cut-off period for the bringing of affiliation proceedings should be six years, more generous than some other Senators had suggested. Nevertheless I believe the concept of my time limit is excluded if the emphasis is placed on the fact that we are talking about the rights of a child and not a punitive proceeding for which you have to put in a protective cut-off period.

I also welcomed his concluding remarks because they represent a significant change in the attitude of the Fianna Fáil Party to the initiative of bringing in Private Members' Bills. This is the most heartening comment I have had so far from the Leader of the Opposition, speaking on behalf of the Fianna Fáil group on this Bill. He concluded:

In conclusion, as far as I and my group are concerned we welcome this Bill, welcome the principles enshrined in it. I feel it is our duty as a Legislature to advance more legislation of this kind. I am looking forward to hearing what the Minister has to say. I hope his contribution will advance this matter further and that we will get, if not acceptance of this Bill, a specific assurance of an immediate Bill enshrining the principles incorporated here. If we do not get such an assurance we intend to support this Bill fully and have a constructive debate on the Committee Stage, on which amendments can be put forward along the lines I have mentioned.

I was particularly struck at the time and in re-reading the debate by the fact that the Leader of the Fianna Fáil Party in this instance was prepared to row in behind a Private Members' Bill because it was putting forward proposals for change in the law in an area where there was a need for such change, an area where there was visible injustice and discrimination. It is fair to contrast this with the apparent attitude of the same party to another proposal — The Family Planning Bill — which is now before the Seanad. It appears from statements in the Press that the attitude of the Fianna Fáil Party is quite different.

Mr. Keegan

There is a big difference between the two Bills.

Mrs. Robinson

If I may deal with this point, they appear to think that it is not appropriate that there be Private Members' initiative, even though the Fianna Fáil group see an urgent need for a change in the law, because they say it is the Government who must do it. I cannot see the logical distinction attempted here. If there is a need for a change in the law, as Senator Lenihan and other Members of his party, indeed the Leader of his party, have made clear in relation to family planning, then why will the Fianna Fáil Party not row in in the same way behind the Private Members' initiative which will be debated soon by the Seanad? By doing so, they will ensure that the law on family planning will be changed. That is the goal Senator Lenihan wanted to see achieved in relation to this subject matter, and I submit there is no distinction which can be validly drawn, between supporting Private Members' initiative in this area where there is an urgent need for change in the law and supporting private initiative in the area of family planning where, again, there is an urgent need for change in the law. I would welcome a similar response from Senator Lenihan on behalf of the Fianna Fáil group when that Bill comes up for debate.

The next contribution was made by Senator FitzGerald. Those of us who had the pleasure of listening to him were, not for the first time, impressed with the degree of reading he had done on the subject and with the very thoughtful, very individual, very humane and Christian attitude which he adopted in relation to the provisions of the Bill. I was pleased he supported the general principles behind it and I was not particularly worried about the more detailed technical criticisms he made of the approach. I do not propose to try to deal with these more detailed criticisms because this Bill is to be withdrawn in favour of the proposed Government Bill and, therefore, the technical details which might have been dealt with on Committee Stage are no longer as relevant.

With some pleasure I take up his challenge to support the comment I made when introducing this Bill that the harsh discriminations associated with the concept of illegitimacy, and the concept itself as introduced into the common law had been influenced by the Canon Law. Senator FitzGerald spent some time saying that he disagreed and called on me to give the grounds on which I based this assumption. Therefore, I wish to place on record that the attitude to illegitimacy of the Canon Law was not the total determining factor, but an important influence on the creation and maintenance of a concept of illegitimacy which allowed the very real distinctions to be made in the property laws and in the lack of rights of persons who were categorised as "illegitimate", thereby reinforcing public prejudices against persons so categorised.

In reviewing the influence of Canon Law, I am again assisted by the researches in this area carried out by my colleague, William Duncan, the lecturer on Family Law in the Law School, Trinity College. Before putting on record the benefit of his researches in this area I would like to refer to a remark by the Minister last night. In my view he was unkind and inaccurate in making reference to a quotation from a paper which Mr. Duncan had delivered to the conference organised by CHERISH in October, because the Minister — and he meant this in a pejorative sense — accused Mr. William Duncan of being emotional. This was meant in the sense that a lawyer and academic should not be emotional about these subjects. It was an unfair comment because this quotation, which I have placed on the record, came at the end of a most detached, dispassionate, well researched and comprehensive survey of illegitimacy in this country — far more comprehensive, far more detached and far more useful than anything that has emerged from the Department of Justice on this subject, which, after all, has the primary role and the primary resources available to it in relation to law reform. This is why I say it was an unjust comment. The Minister had the full text of Mr. Duncan's speech, as he had attended the conference, and therefore knew that it had been used at the end of a very full, legal and properly academic analysis.

Secondly, the Minister was unfair when he used the word "emotional" in a pejorative sense and warned of the dangers of that approach. This would limit the role of the lawyer and the academic in a way I do not accept. I make no apologies for being emotional when a situation warrants strong emotion. The injustice under the present law which condemns the illegitimate child warrants emotion, warrants angry words and warrants the use of whatever resources of language may be available in debate, or in public or on the record of this House, to get across a sense of that injustice and to get change. I make no apologies for being emotional about this subject. I hope I am also using whatever training and abilities I may have to be accurate and constructive in trying to get a change in the law in this area.

However, back to the influence of the Canon Law: the Canon Law, initially — and Senator FitzGerald made this point — did not regard illegitimacy as a defect or something which would bring about discrimination for the person concerned. During the Middle Ages the Canon Law doctrine in this respect underwent a change. The moral basis for this change appears to have been a desire on the part of the Church to protect the institution of the family and, in particular, to protect and reinforce the institution of marriage. Fornication was a sin and adultery an even greater sin, because it was a violation of the sacrament of marriage. The Church, therefore, through its Canon Law decided to draw distinctions between children born within and children born outside wedlock in order to discourage fornication and adultery and to protect the sacrament of marriage.

In the Council of Poitiers, 1087, sons of priests and others born of fornication were forbidden to be promoted to Sacred Orders unless they managed to gain legitimacy, by becoming monks or by leading a regular life in a canonical congregation. This rule became general by being incorporated in the official decrees of Pope Gregory IX. It may be pointed out here that, whatever the policy considerations of this attitude, as a moral argument it is absurd and unfair. It is based on the premise that the child born out of wedlock must suffer discrimination because its parents have done wrong and its suffering, presumably, will be an example to other adults, other grown up men and women, not to do similar wrong. Discrimination against the child can be used as a disincentive, to prevent adults from similar conduct. Consequently the child is the object used to instil moral behaviour in others. When this attitude is adopted then the innocence of the child, and any rights which that child might have as an individual, are ignored. This concept of using the child as a deterrent has reached the absurd result in modern Ireland that on the one hand, we stigmatise an illegitimate child as a social leper and, on the other, we do not regard adultery and fornication as crimes. These acts are not criminal, but any offspring that may result are discriminated against by our law.

An important part of the influence of Canon Law resulted from the way it gradually refined the categories of illegitimacy. For example, a general distinction was drawn between illegitimate children who are natural and those who are spurious. A natural child was one born to parents who could have been married at the time of conception. A spurious child was one whose parents could not have been lawfully married at the time of conception. Spurious children were further subdivided into further categories: adulterous, who were born of an adulterous union; incestuous, where born of an incestuous union where either party had taken solemn religious vows; and nefarious where born of parents who were blood relations in the same line. Such were the degrees of iniquity with which innocent children were branded. These categories involved different penalties and prohibitions on joining the priesthood or being able to take vows, etc. In many ways I would agree with Senator FitzGerald that the Church was trying to discourage illegitimacy and that it was possible throughout this period for a person who was illegitimate at birth to get a Papal rescript legitimising him. Indeed, for those who want to pursue this research further, there are many Cardinals in history who were illegitimate but who got a Papal rescript which legitimised them. To that extent I would agree with Senator FitzGerald that there was a policy of discouraging illegitimacy. Nevertheless the very sophistication of the classifications of the types of illegitimate children reinforced the concept, reinforced public prejudices by showing that these were classes of children who were discriminated against and prohibited from certain privileges.

The point is, the 1918 Canon Law continues to classify illegitimates. In particular, for example, under canon 984 the Canon Law continues to classify illegitimates along with bodily defectives, epileptics, insane persons, persons possessed by the devil, bigamists and those who have incurred infamy of law, judges who have passed sentence of death and men who have undertaken the office of executioner. These categories are barred from entering the clerical state. That is the formal provision still of the Canon Law. Although welcoming the statement on family law reform of the Catholic Hierarchy, which I placed on record earlier in this debate, calling for the need for change in the State law in this area, the Church should perhaps put its own house in order and reform the formal aspects of Canon Law which remains.

I agree with Senator FitzGerald that to some extent the common law was harsher in its attitude than Canon Law. For example, the Canon Law at least permitted the legitimation of natural children by the subsequent marriage of their parents a good deal earlier than the Legitimation Acts in England or in this country. Senator FitzGerald made reference to the Statute of Merton where, after a Church/State conflict on the question in the 12th century, the State refused to accept the doctrine of legitimation. The Legitimation Act was not passed in this country until 1931. Also the common law refused to accept the doctrine of the putative marriage which was accepted by the Canon Law in canon 1114. The result of that is that today, where a marriage is a nullity according to the civil law for example, because the parties lacked capacity or because of some fundamental defect the children of that marriage, which was declared null and void, are retrospectively bastardised. They are illegitimate at common law even though their parents honestly believed at the time of the marriage that the marriage was valid. That is another area where the law should be reformed. There should not be this concept of retrospective bastardisation of a person.

I do not want to dwell any further on this influence of Canon Law. I only dealt with it in some detail in replying because of the gauntlet thrown down by Senator FitzGerald. The point I am really trying to make is that if we have classifications of illegitimacy and subdegrees of classification, and if we attach to those classifications prohibitions, disadvantages, and discriminations, then this has a very substantial influence on public attitudes. This penetrates very deeply, particularly if the law involved is the Canon Law which, as I think Senator Browne said, had very strong influence at a time when most people were illiterate, when there was not the emphasis on the law of different states, when the Canon Law was effectively the law which was known and the law which was therefore of very substantial influence.

While looking at this historical perspective I would like to refer briefly to a summary of the relationship between the concept of illegitimacy and the differing attitudes towards property. This is a necessary perspective if we are to address ourselves to the best way of reforming the law. Unless we understand how the law developed, what the broader back- ground to it was, we will have too limited and too narrow an attitude towards the way in which it should be reformed. I refer to a publication on family law by Margaret Puxon published by Penguin books, chapter 10 of which is entitled "Parent and Child" and begins:

In the last fifty years there have been several revolutions in the family, but none has been more striking than the change that has taken place in the relationship between parents and their children. Within a few decades the customary rights on which the authority of the Victorian father was founded almost completely withered away. Meanwhile, as parents have lost many of their rights, they have also been relieved of some of the burdens of parenthood by the growth of the welfare state.

The law has recognised this change, indeed has contributed to it in many ways, but there are still plenty of anomalies left which are atavistic survivals from historical attitudes towards the family. Where there is confusion in the law relating to children, this is usually due to such survivals and is further complicated, as we find throughout family law, by the attempt to fit an ancient institution into a new world.

The more highly civilized a society becomes, and the longer the period during which the child requires education and support, the fewer rights do parents exert and the more conscious of their liabilities do they become. Among primitive people, living entirely off the land, children are the greatest asset a man can have, since they increase his material prosperity by their labour and thereby add to his status among his fellows. The stories of the Old Testament vividly illustrate the value of children in a nomadic society: sons to care for the flocks and fight off marauders, and daughters to care for the men of the family and to produce new stock, stood first in a man's riches, and a barren marriage was the supreme disaster. First in many of the Old Testament stories comes the catalogue of the character's family.

In a modern industrial society children are the greatest future assets of the state, while to their parents, from the material point of view at any event, they bring mainly burdens.

An Leas-Chathaoirleach

If I might interrupt the Senator a moment, it is 1 o'clock. Does the House intend to adjourn for lunch?

Mr. Sanfey

Yes.

Mrs. Robinson

May I just finish the quotation?

The primitive instinct to have children remains as strong as ever, but the rewards are no longer economic and parental pride is tempered by the weight of responsibility which children bring. In Europe there was a long intermediate phase when children were valued mostly for the continuity they brought to the family: feudalism depended on the inheritance of status and property, and a man could see in his children the defeat of his mortality and the promise that his estates would remain intact in perpetuity.

That is the end of the quotation. I have put it on the record because I think it is essential that we view this particular area in a historical perspective if we are to address ourselves to the very changing circumstances of modern Ireland. The fact is that the laws we are talking about are laws of the 1930s or the common law, and that we must be aware of these historic prejudices and dimensions if we are to bring about the sort of changes which will reflect the needs of modern society and also genuinely bring about equality before the law for the children concerned.

Business suspended at 1 p.m. and resumed at 2.30 p.m.

Mrs. Robinson

Before the adjournment for lunch I was replying to the specific contributions made by different Senators and had just dealt with the point about the effect of Canon Law classifications of illegitimacy on the common law. I had introduced some further material on this matter to show the effect of changing concepts of property, feudal principles and attitudes towards the family on the concept of legitimacy.

I should like to comment now on what Senator FitzGerald said about the problems involved in a change in the law which would give succession rights to illegitimate children. He claimed this could interfere with and distort the family relationship of the family based on marriage and could be an unfair and unwelcome change in the law. I do not have the advantage of having the script of what Senator FitzGerald said last night. I will have to rely on my own memory. The limitations on the newspaper reporting of debates resulted in his speech getting about three lines in the newspapers. I hope I will accurately represent the serious queries he raised and try to deal with them. In essence the question is whether giving succession rights to illegitimate children would discriminate against the family based on marriage so that it would not be a good amendment of the law. I would maintain that what must be achieved is a balance of conflicting interests. I think we would differ on where the balance lies. Very many countries have taken the plunge and have decided to give property rights to illegitimate children. There has not been any social tension or any outcry from families based on marriage as a result. For example, countries like New Zealand, Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Portugal, Sweden, Britain, numerous States in the United States, Australian States such as Western Australia, and Canadian provinces and Saskatchewan. That is not a totally inclusive list of the countries which have conceded the principle and have changed their laws so to allow more or less rights of succession to the illegitimate child. Consequently, there is plenty of evidence in practice of countries who have taken this plunge and have not seemed to meet with the dangers which Senator FitzGerald warned us about last night.

If one analyses the objections put forward, I believe that they do not stand up to a detailed analysis. There are serious flaws in the theory that a change in the law would seriously affect the expectation of the wife and children born within wedlock. These rights are very substantially protected by the Succession Act, and the granting of property rights to an illegitimate child would not substantially affect this position. It would create a better balance in the conflict of interests and in the rights concerned. The argument that is put forward is that a change in the law which would give property rights to illegitimate children would interfere with the reasonable expectation that the lawful wife and legitimate children may have. The wife and her children properly expect to inherit a certain proportion of the husband's property; and, as was pointed out by other Senators as well as Senator FitzGerald, they may have contributed directly or indirectly to its accumulation. The argument is that they might suddenly find their share of this property reduced by the intervention of an outsider claiming a right of support. There are a number of answers to that objection.

First of all, the illegitimate child has reasonable expectations deriving from the basic fundamental principle that a man who fathers a child bears responsibility to contribute to the support of the child. At present the law does not reflect and cater for the reasonable expectations of the child of a father, if that child was born out of wedlock, to inherit the property of the father. We concede that the father's duty in relation to illegitimate children should be enforceable during his life. There is not a problem here because of the possibility of affiliation proceedings for maintenance. But this relationship should also continue on his death through a system of succession which would give all his children the right to a fair share in that estate. It is inconsistent to say that a natural father has a duty to maintain his child while the father is alive and the child is dependent on him, but if the father dies that is the end of the responsibility. That seems to me to be logically indefensible.

Secondly, the principles of succession which were laid down in the Succession Act of 1965 go a long way towards securing the position of the wife in the circumstances. If the man dies intestate, she is entitled to at least two-thirds of the estate. Her entitlement to this portion would not be reduced by according rights of succession to any illegitimate children. They would simply take a share with the legitimate children, if there were legitimate children, and accordingly the share of the children would be lesser; but the wife would still have her portion. The wife would suffer a reduction if the only children fathered by her husband were illegitimate. In that case instead of taking the whole estate in the absence of children, she would take only two-thirds; but she would get two-thirds no matter how many illegitimate children had been born of her husband. Therefore, in the case of intestacy the spouse is protected, and the giving of rights to an illegitimate child would not affect her portion on intestacy.

If the deceased husband dies leaving a will, then he can under the present law make provision for illegitimate children or make provision for anybody else — a stranger, his friends and so on. But it is now provided by the 1965 Act that the wife's position is again secured and protected, in that she has an automatic right to at least one-third of the estate and can defeat the will to that extent. The two reforms which would be introduced if the illegitimate child was to be put on an equal footing with a legitimate child would be that where a will exists then a reference to children in that will would be deemed to include illegitimate children; and, secondly, that illegitimate children would be accorded the right, if their father did not make adequate protection for them, of coming in under the appropriate section of the Succession Act, claiming that the father had not acted as a prudent and reasonable parent and made provision for them. Again I emphasise this would not interfere with the legal right of the spouse, as guaranteed by the Succession Act, to defeat the will to the extent of claiming her legal portion.

Senator FitzGerald referred to the contribution of Senator Higgins of Galway who had been critical of the concept of inheriting property, and yet seemed to want to extend that concept to include the right of an illegitimate child to inherit property. There are in fact two quite separate issues here. While we still have a system of property devolving on death, and the concept of inherited property, then that system and the laws relating to it should deal on an equitable and equal basis with all persons and should not discriminate against children born out of wedlock.

I think Senator FitzGerald exaggerated the dangers to the rights and the expectations of the wife and the legitimate children concerned, and that he also failed to advert to the fact that so many countries have changed their laws in relation to giving property to illegitimate children which has not caused deep social tensions or deep problems of fraud and collusion. I would be happy to see proper safeguards against fraud and collusion. I would he happy to see the Government Bill, which the Minister has undertaken to introduce containing safeguards such as provision for blood tests. In conclusion on this point, I do not think that the arguments put forward rule out the necessity for a change in the law which will give succession rights to the child born out of wedlock.

I should like to emphasise that it is important to remember that it is not the pounds, shillings and pence of the property involved that is really the key issue here. Senator O'Higgins and Senator FitzGerald referred to the fact that the property which devolves on death usually comes to a person when he is adult. In the normal run the deceased was of an advanced age and the offspring concerned is himself an adult or very close to an adult. Therefore, it is not the expectation of the pounds, shillings and pence that is so important. The maintenance provisions are much more important to meet that particular problem by supporting the child during the young years and during education; but the property rights have an important psychological aspect and are very important for the emotional and balanced development of the child in question. This is something which Senator Noel Browne dealt with and which I will deal with in more detail when I am referring to his contribution. It is essential, when talking about changing the law to create property rights, not to focus too much on the monetary value of the property involved, partly because it is not by any manner of means the case that the majority of people have large estates. The key issue is the very important emotional and psychological consequences for a child of not having any rights of succession to his father, and of seeing that other children of this man have those rights. It can have a very damaging effect on the personality of the child, and that is much more important than any actual property or money.

Turning to the contribution by the Minister for Justice, I was glad that he, too, welcomed the principles in the Bill and the need for a change in the law in these areas, although he was not in favour of the method chosen in the Bill, particularly in relation to property rights. I was glad that the Minister undertook so clearly to bring in a Family Law Reform Bill in the very near future. He stated that the heads of this Bill had already been drafted and that he would introduce it this session. It was this undertaking that encouraged the sponsors of this Bill to withdraw in favour of the Government measure, but to do so with the warning that if the Government Bill is not forthcoming during this session then we will exercise our right to reintroduce an improved Bill on this subject in six months so that there will be a continuing pressure for reform in this area.

This sort of pressure, or an indication of this pressure may be necessary, because the Minister last night, and on previous occasions when I have heard him talking either in this area or other areas of family law reform, placed great emphasis on the need for study, for caution, for thought and for detailed consideration about changes. I would agree with him that there is no value in change for the sake of change, that the change must be a genuine reform, but I would have a substantially different time-scale to the one that he appears to have in relation to the urgency of the need for family law reform in this country. I have never seen much evidence of this study at Government level, or the detailed examination of the position since the Coalition Government came in which would justify the Minister's attitude in relation to it.

When one can clearly point to injustice and discrimination, and when the victims of this injustice and discrimination are innocent children, then the time-scale should be very short indeed and the urgency of the law reform should be much more evident than it is. I make this comment although I am aware and I make allowances for the fact that the Minister has very substantial responsibilities at present which are also the responsibilities of his Department. For that reason I welcome the fact that we will be discussing the Bill on the Law Reform Commission later on in the session in this House, because it may be that this will be a much more dynamic vehicle for law reform. I would submit that the Minister cannot rest on the premise that a change in the law in this area of family law requires detailed study and consideration. It would be more helpful to take the subject in smaller doses, and to introduce change in particular areas with all speed. At a time of economic difficulties it would be an opportunity to make necessary and valuable changes in the law which do not cost a great deal of money but which would improve the social conditions and the environment in this country.

The first speaker in this morning's debate was Senator Martin, who referred to the fact that it was useful to have had the opportunity of reading the contributions of other Senators in the Bill. But I must say that having listened to his own contribution I felt that he had not really given the matter the deep thought which I think it would merit, and of which he is eminently capable — because I have heard him on other subject matters giving a very thoughtful and useful contribution. He felt that the Bill was based too much on the assumption that the man is to blame. I think that is an altogether too facile comment about the Bill. The Bill proposes to improve the system for bringing affiliation proceedings since virtually no affiliation proceedings have been brought in the Irish State since the Act enabling the procedure during the 1930s. I do not think that his remark is a fair, or a valid or even useful comment on the situation. Furthermore, he said the Bill could be dangerous because of the strident feminism which is apparently rife in Ireland at the moment, and it made me smile because the aspect to which he was referring at that time was the idea of treating illegitimates equally and giving them property rights. I am sure that the Catholic Hierarchy who have expressed themselves so strongly in favour of this change in the law would be amused — or bemused — to find themselves accused of radicalism and strident feminism. Therefore I think that Senator Martin might perhaps address himself more deeply to the overall problem. At the same time, I respected his preference to wait for the Government Bill rather than support the terms of this Bill, and he has no problem in fact because we are not pressing this Bill to a vote.

Senator Russell made a contribution as a non-lawyer and a nonacademic. As such he welcomed the broad principles of the Bill and also the fact that the forum of the Seanad was being used to debate an issue of this sort and to introduce a Bill which could bring about a necessary change in public opinion and indeed inform public opinion in order to secure the passage of such a law. He referred to the fact that a debate of this sort would have been most unlikely to take place in 1931 and that it is a reflection of changing attitudes, and I fully agree with him in this. Unfortunately one sometimes gets the impression that debates in this House are lagging behind some of the changes in social attitudes that are taking place in the country. However, I had an impression that Senator Russell had a better sense of urgency about the need to remove obvious and existing disabilities, and then perhaps to tackle the more complex issues, than the Minister seems to have. I would recommend that he influence the Government in this respect.

His contribution was followed by a very interesting contribution by Senator Noel Browne, who indeed reviewed the debate which has taken place on this Bill and then gave it a very valuable new dimension by emphasising the medical and psychological aspects of what we are discussing. He emphasised the necessity for us to create a society where the children, all of the children in that society, can have an opportunity to develop as balanced integrated personalities. He emphasised the need for the sort of environment which will promote their emotional health, and which will remove the present stresses, and he referred in particular to the stress on an illegitimate child — the stress of guilt, the legal disabilities which we are trying to remove but also the social and economic deprivations. He referred to the stress on the mother of that child, the single mother bringing up the child, and the fact that instead of society putting every possible facility at her disposal we have been slow to even create a category in our social welfare code of the unmarried mother, and slow to improve the facilities for adoption and also the conditions which would create a real choice for the single mother in deciding what would be in the best interest of her child.

Senator Browne then paid tribute to the voluntary organisations which have played such a valuable and important part in the improvement of social conditions in this area. I should like to take the opportunity of joining with him in this tribute. I think that it is a most welcome phenomenon of modern Irish life to note the number of voluntary organisations which have chosen particular areas in which to operate, and have done so effectively with a very intelligent use of the media, with great goodwill and concern by the people involved, and with a humanity that goes far beyond what we have managed to develop at the official level. I am thinking in this context obviously of CHERISH, the organisation of single mothers who have come together, and who are willing to extend their umbrella to cover all one parent families, and of the way in which they have given themselves a dignity which our Irish society would not give them until they organised and spoke up for themselves. I am thinking of ALLY, AIM, Women's Aid, CARE and other such voluntary organisations. I think they play an enormously valuable part in our thinking and that they ought to try to influence us more.

I am happy to know that, for example, the papers given at the conference organised by CHERISH in October are ready for publication and will be available very soon. I hope these will be made available to Members of both Houses, that we may read the detailed analysis of the situation in relation to the illegitimate child in Ireland and that the debate on the Government Bill may be that better informed.

Senator Browne expressed a certain surprise at the acceptance of the principles of this Bill considering that illegitimacy is a delicate topic. He was surprised that there was no acrimony in the debate and no dissent from the principles in the Bill and he put forward various theories as to why that might be the case.

I now refer to the next contribution, from Senator Kitt Aherne — I think she was the only other female Senator who participated in the debate. I was very glad that she accepted the principles in the Bill and that she proclaimed, without qualification, that the innocent should not be made to suffer and should not be discriminated against under Irish law. She asked a question about blood tests — I have answered that question by saying that I would welcome a provision in the Government Bill to that effect — and she emphasised the need for a change in public opinion and attitudes.

The last contribution was from Senator Deasy who voiced a certain hesitation in making a contribution on this technical Bill. I accept that it is a very technical Bill, but the subject matter is one on which any politician can have a view, and his contribution was particularly welcome as that of a young politician who is making his career in Irish politics and who has the courage to express his views and also the concern for all citizens in the country and who is prepared to voice that concern and to join in arguing the necessity for a change in the law.

At this point I have to make a rather sad reflection of disappointment that there was not a contribution from a spokesman for the Labour Party, as such. Of course, one of the co-sponsors of the Bill, Senator Higgins, made a very full contribution in sponsoring the Bill; and I regard the contribution by my colleague, Senator Browne, as being the contribution of a colleague in the Dublin University constituency. So that there was not, unfortunately, any separate contribution from a Senator of the Labour Party, as such.

I should like to deal with another general issue at this point and that is the question of our general approach to family relationships in this country. I shall also look at the approach which has evolved elsewhere, because this is inherent in an examination of the question of legitimacy and illegitimacy. I wish to refer, firstly, to the provisions in Article 41 of the Constitution relating to the family. I mentioned this aspect very briefly when introducing the Bill and Senator FitzGerald seems to be under some confusion as to the point I was making. Article 41 provides for the State recognition of 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". Subsection 2º provides that "The State therefore, guarantees to protect the Family in its constitution and authority, as a necessary basis of social order and as indispensable to the welfare of the Nation and the State." Section 3.1º, provides that "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."

The point I was trying to make is that the wording of that Article could give rise to very difficult problems if it were to be interpreted narrowly. If the provisions that I have read out were so interpreted that the family, as far as the Irish Constitution is concerned — as far as the rights under the Irish Constitution is concerned — means the family based on marriage and that consequently, if it is not based on marriage, it is not a family.

It is not necessary to follow that line of reasoning. I do not believe that it is desirable socially, and if it were felt that this was the only conclusion that one could draw from the wording of Article 41, then that is yet another Article — possibly more important than some of the better known political Articles such as Articles 2 and 3 — which should be changed in order that we may develop proper and humane laws in this country.

One area where there did appear to be a tendency to regard the family under the Constitution as being confined to the narrow married family was in the development of Adoption Law. This was evidenced by the fact that under the basic adoption law — the Adoption Act of 1952 — adoption is confined to children who are illegitimate or orphans. I was very encouraged by the fact that when the Adoption Bill, 1974, was discussed in the Seanad Senator Alexis FitzGerald spent so much time dwelling on the fact that in his view — and I would agree with him — it would not be in conflict with the Constitution to extend adoption to include children who had been born within wedlock but who had perhaps been abandoned by their parents, or where one parent had died, or where circumstances were such that the child would be better placed in adoption.

The fundamental reason we have confined the facility of adoption only to illegitimate children or orphans is because the official view was that because of the family relationship based on marriage the married family had inalienable and imprescriptible rights and therefore — even though the married couple had never assumed any responsibility, had never looked after the child, never extended any love or care to the child, never supported it financially — that there was some imprescriptible bond there, because the family had been based on marriage. Whereas the same attitude did not apply at all to a relationship between a single mother and her child where the relationship was not based on marriage, that this was not in the fullest sense a family relationship. This would be a very narrow, a very regrettable, proposition and it is one which in my view is not necessarily required by the wording of the provisions of the Constitution.

I should like to draw attention to an example of the development in this area in the United States at the federal level, where the National Conference of Commissioners on Uniform State Laws have compiled a Uniform Parentage Act. This Act was compiled in 1973. I will refer very briefly to its provisions because they can make an important contribution to the discussion of the way in which we develop the law in this country. This Uniform Parentage Act is a code, a model Act, which the various states of the United States can adopt. It is a procedure for reform which is increasingly popular in the United States and which has meant that many states adopt the Uniform Act in a particular area. This Uniform Parentage Act provides, in section 1, for the definition of the "parent and child relationship". It provides:

As used in this Act, "parent and child relationship" means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.

Section 2 goes on to provide that this relationship is not dependent on marriage:

The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.

Section 3 provides for how this parent and child relationship is established:

The parent and child relationship between child and

(1) the natural mother may be established by proof of her having given birth to the child, or under this Act;

(2) that the natural father may be established under this Act;

(3) an adoptive parent may be established by proof of adoption or under the [Revised Uniform Adoption Act].

Section 4 — this is the last section I intend to refer to — refers to the presumption of paternity. It is a fairly long section about the way in which paternity may be presumed but I think it is worth putting on the record.

(a) a man is presumed to be the natural father of a child if:

(1) he and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court;

(2) before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnised in apparent compliance with law, although the attempted marriage is or could be declared invalid, and,

(i) if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; or

(ii) if the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation;

(3) after the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnised in apparent compliance with law, although the attempted marriage is or could be declared invalid, and

(i) he has acknowledged his paternity of the child in writing filed with the [appropriate court or Vital Statistics Bureau],

(ii) with his consent, he is named as the child's father on the child's birth certificate, or

(iii) he is obligated to support the child under a written voluntary promise or by court order;

(4) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child; or

(5) he acknowledges his paternity of the child in a writing filed with the [appropriate court or Vital Statistics Bureau] which shall promptly inform the mother of the filing of the acknowledgement and she does not dispute the acknowledgement within a reasonable time after being informed thereof, in a writing filed with the [appropriate court or Vital Statistics Bureau]. If another man is presumed under this section to be the child's father, acknowledgement may be effected only with the written consent of the presumed father or after the presumption has been rebutted.

(b) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.

The significance of this Uniform Parentage Act is the attempt to create parent/child relationships which are not necessarily based on marriage, which are not discriminated against if they are not based on marriage, which give equal rights to the relationships outside marriage. This is the product of a different system, a product of a more varied system in the United States than we have. However, it is worth knowing how the law is developing at the moment in a country such as the United States — not that we should immediately in a parrot-like way adopt similar provisions — but we should be aware of a very conscious and deliberate decision by a country like the United States to eliminate discriminations in the law and in property qualifications and the social stigmas involved in the distinction made between the legitimate child and the illegitimate child. This should give us food for thought as to the way in which the law is developing here, and in particular it should reinforce the point that I was making: that it is a narrow and dangerous development in the law to confine the family and rights of the family solely to the family based on marriage.

In conclusion, I hope the proposals in this Bill, and the wide ranging and constructive debate which we have had on it, will contribute to the informing of public opinion and will also hasten the time when the Minister introduces his Government measure and encourage him to know that he will receive a welcome when he does choose to introduce the Bill to change the law in this area.

Bill, by leave, withdrawn.

An Leas-Chathaoirleach

The House is adjourned until next Thursday at 10.30 a.m.

Mr. Hanafin

Are we just taking one motion on Thursday?

Mr. Halligan

We would be prepared to meet on Wednesday, but we understand that you are not available to take the next——

Mr. W. Ryan

It is not fair to blame us for the fact that the House is not meeting on Wednesday.

Mr. Hanafin

We should consult Senator Sanfey.

Mr. Halligan

No, I am quite definite about this. After the pantomime we had yesterday at the opening of the Order of Business, I want to put this on the record.

An Leas-Chathaoirleach

Is it agreed that the next sitting be at 10.30 next Thursday morning?

Mr. W. Ryan

I should like to put it on record that we are not responsible for the House not sitting next Wednesday.

The Seanad adjourned at 3.25 p.m. until 10.30 a.m. on Thursday, 20th February, 1975.