A Critical Analysis Of The Protection Of Families Under The Irish Constitution Of 1937

AuthorDonnacha O'Sullivan
PositionBCL III, National University of Ireland, Galway
[2012] COLR
Donnacha O’Sullivan*
Since its enactment in 1937, Bunreacht na hÉireann has created a furore of debate within the
confines of Irish society. Debate not just reserved to the traditional offices of power or courts
of justice, but amongst the everyday man as it champions the rights of her citizens and lays
out the sociological beliefs of the nation. As with any element of governance it does not
garner absolute approval from every demographic, but it has been instrumental in the creation
of the society and island we find ourselves inhabiting.
However, the Constitution remains a product of its time of drafting, and this goes some way
toward explaining its somewhat restrained and conservative nature. This is not to say that the
Constitution has been a hindrance to the progression of Irish society as the fledgling nation
came to terms with the rapidly changing times of the mid 20th century. In fact in some
instances it has been the stepping stone for progress, exemplified in the McGee1 case where
recognition and interpretation of the right to marital privacy allowed for specific sections of a
law criminalising the importation of contraceptives into Ireland to be held unconstitutional.
The Constitution places great importance on the family unit as the cornerstone of Irish society
calling it the natural, primary and fundamental unit group of society2 and a moral
institution that possesses inalienable and imprescriptible rights.‟3 Amongst the praise that it
heaps on the family unit one utterance stands tall above the others suggesting the family is
the necessary basis of social order...indispensible to the welfare of the Nation and the State.‟4
Indeed the level of reverence the Constitution seems to hold for the family is at such a level
that Shatter describes the family unit as being placed on a constitutional pedestal.‟5 It must
be said however that within the Constitution the modern family occupies a grey area whereby
it has been given express rights6 though under a rather narrow and outdated definition.
Throughout this article we will explore the relationship between the family unit and the
Constitution looking at the rights it does impart, those it does not, and the types of family it
recognises. We will ask whether or not the document drafted seventy four years ago still
protects and empowers the institution it so highly regarded at the inception of the state, as the
traditional family unit has unquestionably gone through a complete metamorphosis in the last
three quarters of a century. These questions shall be asked in the light of comparisons with
other jurisdictions and their legislation.
* BCL III, National University of Ireland, Galway.
1 McGee v Attorney General [1974] IR 284.
2 Bunreacht na hÉireann 1937 Art 41.1.1.
3 ibid.
4 ibid Art 41.4.2.
5 A Shatter Fa mily Law in the Republic of Ireland (4th edn Butterworths Dublin 1997) 5.
6 Bunreacht na hÉireann 1937 Art 41-42.

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