Murray v Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Costello
• Judgment Date: 02 July 1985
• Neutral Citation: 1985 WJSC-HC 2561
• Docket Number: No. 7704P/1981,[1982 No. 7704P]
• Date: 02 July 1985

1985 WJSC-HC 2561

THE HIGH COURT

No. 7704P/1981

MURRAY v. IRELAND AND ATTORNEY GENERAL

BETWEEN/

MARIE MURRAY AND NOEL MURRAY

Plaintiffs

and

IRELAND AND THE ATTORNEY GENERAL

Defendants

Synopsis:

HUSBAND AND WIFE

Personal rights

Procreation - Opportunity to beget children - Deprivation - Spouses serving sentences of imprisonment for life - Wife aged 37 years - No children of marriage - Constitutional rights of spouses not infringed by condition of imprisonment - (1981 No.7704P - Costello J. - 2/7/85).

|Murray v. Ireland|

1 Judgment of Mr. Justice Costellodelivered on the 2nd July, 1985

2 Rights of married persons to beget children. Whether protected by Article 41 or Article 40, 3. 2 of the Constitution. Plaintiffs (a married couple) both undergoing sentences of penal servitude for life. Whether the plaintiffs rights are unconstitutionally infringed by failure to permit exercise of right to beget children during term ofimprisonment.

3 The plaintiffs are husband and wife. Each was found guilty of having murdered a member of the Garda Siochana and each is now serving a sentence of penal servitude for life and in addition sentences imposed for robbery and fire-arm offences. Whilst the prison authorities allow them to meet regularly, these visits are strictly supervised and the ordinary intimacies of married life are not permitted to them. This is the basis of their claim in these proceedings. Presently they have no children but they assert that as a married couple they have a right to beget children, that this right is protected by the Constitution, and that it is being unconstitutionally infringed. A number of declarations are sought, including a declaration that they are entitled to bail so that they can exercise this constitutional right outside prison (a claim not included in the written pleadings but orally submitted on their behalf at the hearing) or alternatively a declaration that would oblige the prison authorities to provide facilities to enable them to exercise this right within the confines of the prison.

4 There are certain factual aspects of this case on which particular reliance was placed in the argument advanced on the plaintiffs"behalf. The plaintiffs were married on the 11th August 1973 and lived together as man and wife until the arrest of the second named plaintiff in the month of March, 1974. After his release in July of that year they renewed cohabitation until their joint arrest in October, 1975. Prior to their joint arrest they had taken steps to avoid conceiving a child and had deliberately postponed having children. Their evidence is that they would now like to have two or three children. However, the first named plaintiff was born on the 21st October, 1948 and is now approaching her thirty seventh birthday, (her husband is about a year younger). The medical evidence adducedon the plaintiffs behalf is that a woman's fertility declines rapidly after the age of 35 and that after the age of 45 the chances of a married couple conceiving a child are very low indeed. She was convicted on the 9th June 1976 (her husband's final conviction is of a later date). It is accepted by the plaintiffs and the defendants that it is reasonable to expect that the normal practice in relation to the remission of sentences will apply to both plaintiffs and the case has proceeded on the basis that both will be released long before they would have reached their normal life span notwithstanding the actual terms of the sentences imposed. Whilst I have not been told when this is likely to occur I will assume for the purposes of this case that at the date on which both will be released the age of the first named plaintiff will be such that the chances of the plaintiffs conceiving a child will be small. This is the point of particular focus in the plaintiffs"submissions.

5 The only other facts relevant to the plaintiffs" case can be briefly stated. The first named plaintiff has been serving her sentence in Limerick prison. Prior to his transfer to the prison for male prisoners in Limerick in May, 1983 the second named plaintiff served his sentence in the Curragh Military Detention Camp, during which time he was allowed to visit his wife once every two months. Since his transfer the plaintiffs are now permitted to meet much more regularly. They meet once a week for half an hour in a small "Portacabin" building used usually for visits between prisoners and their legal advisers. The plaintiffs meetings are strictly supervised, taking place in the presence and within the hearing of two prison officers. A request made on their behalf that conjugal visits be permitted was turned down by the Minister for Justice in March of 1979and more recently the second named plaintiff was informed that he would not be eligible for parole for many years to come.

Are the plaintiffs' rights protected by Article 41 or Article40?

6 The plaintiffs assert (a) that each, as a married person, has a basic human right to procreate children with his or her spouse, and (b) that this right is protected by Article 41 of the Constitution. Whilst the alternative argument that it is protected by Article 40 is not abandoned particular reliance is placed on Article 41 for it is said that there is a hierarchy of constitutionally protected rights and this article shows how high in the scale of values the rights claimed in this case should be placed.

7 As to (a), the Constitution makes clear that the concept and nature of marriage which it enshrines are derived from the Christian notion of a partnership based on an irrevocable personal consent given by both spouses which establishes a unique and very special life-long relationship. According to this concept the procreation and education of children by the spouses is especially ordained. By explicitly recognising and protecting this concept of the institution of marriage it would follow that the right of each spouse to beget children is implicitly recognised and protected. What is controversial, however, is whether the right to beget children which each of the plaintiffs enjoy obtains its protection from Article 40 or, as the plaintiffs contend, Article 41. For reasons which I will explain later it seems to me that the plaintiffs have over-emphasised the importance of this point and that the validity of their case does not depend on it being resolved in their favour. Notwithstanding this view I should nonethelessexpress my conclusions on the issue which has been posed. I should make it clear, however, that I think the right I am considering is distinct from the constitutional right to privacy established in McGee .v.A.G. (1974) I.R. 284.

8 Article 41 deals with the rights of the Family and its relevant provisions are as follows:

"Article 41"

1. 1. The State recognises the Family as the natural and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positivelaw.

2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and indispensable to the welfare of the Nation and the State".

9 Article 40 deals with Personal rights and its relevant provisions are asfollows:

"Article 40"

3. 1. The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen".

10 Can the right asserted be regarded as stemming from the imprescriptible and inalienable rights accorded to the Family in article 41 or is it more proper to consider that it is one of the unspecified personal rights which by Article 40 the State is required to vindicate and defend? I do not think this question is answered, as counsel for the Attorney General has suggested, by the view that a married couple without children is not a "Family" within the meaning of Article 41. "Family" is a word which in every day use has many different meanings. The Constitution does not attempt to define it but instead describes it as the "natural primary and fundamental unit group of Society", as a "moral institution", as the "basis of the social order", and as being "indispensable to the welfare of the Nation and the State". Whilst it is true that the articlecontains a pledge that the "institution of marriage" will be guarded with special care and the Family is referred to as being based on marriage I do not think that the reference to two distinct institutions necessarily concludes the matter against the plaintiffs as the defendants submit. A married couple without children can properly be described as a "unit group" of Society such as is referred to in this Article and the lifelong relationship to which each married person is committed is certainly a "moral institution" The words used in the article to describe the "Family" are therefore apt to describe both a married couple with children and a married couple without children. It is true that the rights and duties of a married couple with children are more varied than a married couple without children but each "unit group" has the same nucleus and it is reasonable to assume that both were given the same constitutional protection.

11 But this view of the defendant's argument does not necessarily mean that the plaintiffs are correct in submitting that the basic right they assert should be regarded as one derived from Article 41. There is strong and persuasive authority to support the view that the right to beget children should more properly be regarded as a "personal right" within the meaning of Article 40.3.1. Mr. Justice Kenny in Ryan .v. A.G. (1965) I.R. p. 294 referred to the right to marry as one of the unenumerated personal rights referred to in Article 40.3.1 and Mr. Justice Griffin (in McGee .v. A.G. (1974) IR 284) at p. 333 concurring with this view observed "what more personal right could there be in a citizen...