Alan Shatter TD’s speech at the Marriage Equality Conference

Ladies and Gentlemen,

I am delighted to have been invited to speak at Marriage Equality’s LGBT Parenting in Ireland conference. I would like to congratulate Marriage Equality on today’s event and on its multi-faceted campaign to highlight the situation and needs of lesbian, gay, bisexual and transgender families. Marriage Equality has consistently expanded our knowledge of the experiences of LGBT parents. What is more, it has put a useful spotlight on the experiences and wishes of their children.

Today’s conference promises to be a timely contribution to an important debate on the parental needs and responsibilities of lesbian, gay, bisexual and transgender people. It is valuable to have speakers such as Fiona Tasker whose empirical research provides us with a nuanced and informed perspective on this issue. Her innovative research illustrates how new tools such as the Apple Tree Family genogram can deepen our understanding of family relationships in families parented by lesbians. She has also provided a valuable analysis of recent research on the quality of parent-child relationships and on children’s gender development in LGBT families. Similarly, Jane Pillinger and Paula Fagan’s research on LGBT parents in Ireland, featured today, offers a useful snapshot of the priorities and needs of LGBT parents and of those planning parenthood here. I anticipate that the research carried out by Fiona Tasker, Paula Fagan and Jane Pillinger will help to debunk some of the myths that can bedevil the debate on LGBT parenthood.

International research proves that children can thrive in a variety of family forms and that there is no one family form which has a monopoly in terms of cherishing a child. Jeremy Garrett and John Lantos have made the argument in an article last year for the American Academy of Paediatrics that children’s well-being is best protected by supporting those who wish to care for children rather than by refusing to recognise non-traditional forms of family. Similarly, Abbie Goldberg and JuliAnna Smith have undertaken very useful research on the outcomes for adopted children in a range of family types. Their research, published last year, found few differences in child adjustment by family type. Instead, the studies that they examined showed that child outcomes were unrelated to parental sexual orientation. They found that the key factors in child adjustment to an adoptive family related to the preparedness of the adoptive parents, the extent to which either parent was experiencing depression and the prevalence of relationship conflict. Their research usefully reminds us that the key to child welfare is good parenting rather than a specific family form.

Last year, the Committee on Psychosocial Aspects of Child and Family Health of the American Academy of Paediatrics expressed its policy position on the issue of child welfare and LGBT parenting. It indicated that extensive data over 30 years of research had confirmed that children raised by gay and lesbian parents demonstrated resilience in terms of social, psychological, and sexual health. It concluded that children’s well-being is affected much more by their relationships with their parents, their parents’ sense of competence and security, and the presence of social and economic support for the family than by the gender or the sexual orientation of their parents. However, it argued that lack of opportunity for same-gender couples to marry adds to familial stress and that this affects the health and welfare of all household members. The Committee recommended that paths to parenthood such as assisted reproductive techniques, adoption and foster parenting should focus on competency of the parents rather than on their sexual orientation.

The American Academy of Paediatrics considers that a child’s welfare is best safeguarded when the family in which he or she is being reared is recognised legally. Its policy statement on the subject, again published last year, is supportive of civil marriage rights for LGBT couples. It sees the family as the basic social unit within which children develop the nurturing relationships that they need to thrive. It states that scientific evidence affirms that children have similar developmental and emotional needs and receive similar parenting whether they are raised by parents of the same or different genders. It argues that if a child has two parents wishing to create a permanent bond through civil marriage, it is in the best interests of their child that legal and social institutions allow and support them to do so, irrespective of their sexual orientation.

These are controversial issues on which there is a diversity of strongly-held viewpoints. I have mentioned the latest international research supportive of parenting by LGBT couples. Research has also been undertaken which may suggest different findings.

This conference is being held at a time of change in Ireland. The assumption that the ‘traditional’ marital family is best for children is being questioned. The positive contribution of other family forms is being highlighted. I foresee a very lively debate over the next two years on the nature of marriage and the family. Our society will be defined by the responses that we agree to these profound questions. I hope that our debates on these issues will be constructive and informative. While strong feelings will be held and expressed, I hope that we have the generosity as a society to debate positively on these issues.

The Government’s decision of 5 November 2013 to hold a referendum on same-sex marriage is a major step forward on the path to marriage equality. In this context, I would like to acknowledge the important contribution that has been made by the Constitutional Convention to the debate on constitutional change. The Constitutional Convention has provided an innovative representative process in which people of diverse views have been able to come together to consider issues of profound importance and sensitivity. The manner in which the Constitutional Convention debated the question of whether or not same-sex marriage should be provided for in the Constitution is a model for broader debates on this issue. It is particularly valuable that the Constitutional Convention secured a high level of engagement on this issue by civil society. 1,077 submissions were received from interest groups, church organisations and private individuals. Usefully, the submissions received reflected a diversity of views on the issue, with arguments both for and against a referendum on same-sex marriage.

The Convention’s discussions on 13-14 April 2013 on the question of whether to amend the Constitution to provide for same-sex marriage were important. The strength of the majority – 79% – which recommended that provision should be made for same-sex marriage is significant, given that the Convention is explicitly representative of Irish society. It is also significant that only 19 members of the Convention voted against the recommendation.

The Constitutional Convention considered that the situation of children of lesbian, gay, bisexual and transgender parents also needed to be addressed. Again, the Convention recorded a strong majority – 81 members – in favour of the recommendation that the State should enact laws incorporating the changed arrangements regarding the parentage, guardianship and upbringing of children. It is noteworthy that only 12 members voted against this recommendation.

As you are aware, the Government responded by welcoming the Third Report of the Convention on the Constitution on the issue of same-sex marriage. It noted the high level of engagement of Convention members in the process and the enormous interest of civil society in this issue as evidenced by the large number of submissions. The Government also noted the high level of support within the Convention to changing the Constitution so as to enable same-sex couples to marry. In response, the Government decided that a referendum should be held, no later than mid 2015, on the question of enabling same-sex couples to marry. The Government has given me the responsibility to undertake the necessary preparatory work. I will have the task of preparing a Referendum Bill and a draft implementation Bill to provide for marriages between same-sex couples while guaranteeing freedom of religion for solemnisers.
The key issue that needs to be addressed in advance of a referendum is that of children and parental rights. The Government is mindful that the position of children in families headed by same-sex couples has been a matter of concern for the Constitutional Convention. It is an issue that the Civil Partnership Act of 2010 failed to address and it is an issue of vital importance that must be addressed in the context of the gaps in our current law and in the best interests of children and those parenting them. It is an issue of direct relevance today in the context of civil partnership. The issue and the needs in this area will not change should the outcome of the intended referendum on same sex marriage support or reject the enactment of legislation to facilitate such marriages.

For over 18 months, both I and my Department officials have been engaged in the preparation of comprehensive legislative proposals to modernise and reform our laws on the guardianship, custody, upbringing of and access to children to reflect the reality of the diversity of family life in today’s Ireland and to ensure that, where estranged parents are in dispute, the overriding principle in the resolution of such disputes is the best interests of the child. The objective of the General Scheme of the Bill prepared, on the basis of which there will be a public consultation, is to remove the legal inequalities between children in a large range of non-traditional families relative to those living in a constitutional family based on marriage. The Draft Bill will shortly be considered by Cabinet and then published. My objective is that the very much needed new legislation is enacted by the end of this year.

We all know that more and more children are living in non-marital families. The Census 2011 figures speak for themselves. Census 2011 indicated that there were 215,315 lone parents in Ireland in 2011. 66% of 115,046 separated and divorced women were living in households with children. The Census also recorded that the number of children of cohabiting couples had increased by 41% between 2006 and 2011. There were 49,005 households of cohabiting couples with children under 15 recorded in Census 2011. According to CSO figures, 74,650 children were born in Ireland in 2011, of whom 25,190, or just over a third, were born outside marriage or civil partnership. 72,225 children were born in 2012, of whom 25,344 or 35.1% were born outside marriage or civil partnership. That amounted to an increase of 1.4% in the percentage of children born outside marriage or civil partnership between 2011 and 2012.

Considerable numbers of children are growing up, therefore, in non-marital families or in blended families with step-parents, civil partners and with their parents’ cohabiting partners. The Government is conscious that our current laws do not cater adequately for many children living in particular family forms. Our laws have been framed for a different age and different social circumstances. That is one of the reasons why the Government made a commitment in the Programme for Government to “modernise and reform outdated elements of family law”.

Which reforms do we need to put in place? Families will have differing needs depending on their situation. The LGBT Parenthood Study undertaken by Jane Pillinger and Paula Fagan reveals the diversity of parental situations within the LGBT community in Ireland. Their research has indicated that over half of the LGBT parents surveyed had a child or children from a previous opposite-sex relationship. The majority of gay fathers and trans parents and half of the lesbian mothers surveyed, for instance, had their child or children from a previous opposite-sex relationship. The research usefully highlights that some lesbian and gay parents have multiple parenting roles. A number of those parenting surveyed had children from previous opposite-sex relationships and some were parenting children of their current same sex partner. Although the majority of parents had their children living with them on a full-time basis, some shared parenting across two households. Over one-third of respondents parented with their partners, while nearly one-fifth parented alone or parented with an ex-partner. Smaller numbers parented with a partner and other people. While bisexual parents and lesbian mothers predominantly parented with their partners, gay men and trans parents were more likely to parent with an ex-partner.

Paula Fagan and Jane Pillinger’s research also provides valuable information on the current situation of LGBT couples and uptake of other parenting options such as adoption, fostering and surrogacy. They indicate that lesbian couples are the largest group of parents who have become parents through assisted human reproduction. However, I note the low numbers of respondents who had become parents through adoption, fostering or surrogacy. I note also their conclusion that legal barriers are a major factor limiting LGBT parents in these pathways to parenthood.

The research indicates that LGBT parents have varying legal rights in terms of the children for whom they are caring. However, it is striking that nearly one-fifth of those undertaking parenting roles, predominantly lesbians, had no legal status as parents. I am conscious that the issues of legal vulnerability and lack of parenting rights emerged as constant concerns for LGBT parents in their daily lives. I note the concerns expressed at the potential for interference with the custody or legal rights of a non-biological parent, if something were to happen to the legal parent. I also acknowledge their concerns at the potential implications of being unable to consent to medical treatment in the event of a child’s medical emergency.

Jane Pillinger and Paula Fagan’s research highlights the reality that LGBT parents, like many heterosexual parents, are having to negotiate the differing rights and responsibilities that arise when their children are part of blended families. The gay or lesbian parent may be sharing guardianship and access with the other biological parent. Alternatively, the other parent may no longer be on the scene. In some cases, they will be living with their children. In other cases, they will be non-custodial parents. In yet other cases, they will be co-parenting children whose second biological parent is a non-custodial parent. In some cases, what is at issue is the question of parental rights. In other cases, what is needed is easier access to guardianship. The key issue is to ensure that the child’s best interests are addressed and that those actually rearing a child have the necessary legal protections in terms of guardianship, custody and access.

I am conscious that families headed by LGBT couples do not have the same constitutional protections as those raised by married couples or indeed by lone parents. Inevitably, this is seen as creating vulnerability and disadvantage for LGBT parents and for their children. The legislation on which we have been working aims to put in place a legal architecture to underpin diverse parenting situations. It seeks to provide legal clarity on parental rights and responsibilities in such situations. What I am aiming to do is to address the diverse situations of LGBT parents but also of heterosexual parents whose situations are not adequately addressed under the current law.

Many of the issues needing to be addressed are common to both LGBT and opposite-sex parents. Equally, there are issues needing to be addressed that disproportionately affect LGBT couples. One of the key issues is the need to provide legal certainty to couples who have had children through surrogacy or assisted human reproduction. My vision is to reform the system, subject to safeguards, so that the commissioning couple will clearly be recognised to be parenting as a couple. I want to rectify the imbalance in parental rights between the parent who is biologically linked to the child and the other parent who does not have this link. I want the second parent to be able to take the day-to-day decisions relating to a child’s life, as a parent and as a guardian, free of the current legal uncertainty. Very practically, it makes no sense that the second parent would be a stranger in law and that the child would not have secure rights in terms of inheritance and succession. I am aiming, therefore, to develop a system in which a child born through assisted human reproduction using donor material from a third party would be the child of the both members of the couple.

The issue of surrogacy is particularly topical at the moment. Increasing numbers of children are being born to LGBT and heterosexual couples through surrogacy. My concern is to devise a solution that safeguards the child’s welfare. There is a corresponding need to address the risk of exploitation faced by potentially vulnerable surrogate mothers. At the same time, I am very conscious of the legitimate desire of couples to have children whom they can cherish. My brief is to focus on the parental responsibilities that arise when a child is born through surrogacy. My aim is to devise a legal mechanism which would allow the child to have legal certainty in terms of parentage and that would enable a surrogate mother to transfer her parental responsibilities to the commissioning couple. I consider that the model of non-commercial surrogacy in operation in countries such as the UK, Australia, Belgium and the Netherlands strikes the right balance. This model enables commissioning couples to have the possibility of becoming parents but works to prevent the terrible exploitation of poor women in developing countries. The last thing that we would wish is that our legitimate desire to have children would lead to baby farming or the trafficking or exploitation of vulnerable women by unscrupulous organisations.

The issues of surrogacy and of assisted human reproduction are often the headline issues on which much commentary has centred. However, as Paula Fagan and Jane Pillinger’s research has confirmed, many LGBT couples are living in blended families with children whose other biological parent is also involved in parenting the child. In such situations, it may be that what is needed is to extend the possibility of applying for guardianship. In this scenario, a child could continue to retain the existing legal relationship with both biological parents. At the same time, the parent’s lesbian or gay partner could become a guardian of the child. This possibility might be very suitable in situations where a child was effectively being reared by the LGBT couple. A reform of this nature would not have any impact on the existing rights of the non-custodial biological parent. However, it would provide necessary security for the non-biological parent who was looking after the child on a day-to-day basis. It would enable that parent to consent to medical treatment or to be able to bring a child on holiday.

I am also concerned at the lack of protection for a child living with parents who are civil partners if the parents decide to split up. I see a need for protection of a child’s interests where orders are being made relating to the shared home of civil partners on the dissolution of the civil partnership. These issues also arise if one partner decides to sell the home without addressing the needs of the child. Equally, there needs to be some mechanism to secure maintenance for a child from a civil partner who has been acting as parent to the child. It is important that parents be enabled, as much as possible, to develop meaningful relationships with their children and it is of central importance that the overriding principle in the resolution of parenting disputes between estranged civil partners is the best interests of the child. I note the finding in Paula Fagan and Jane Pillinger’s research that some parents were being denied access to their children because of prejudices relating to their sexual orientation or transgender status. I want to put reforms in place that make it more difficult for one parent to put barriers in place preventing the child from being able to have a nurturing relationship with the second parent. It is these practical issues, as well as the headline changes to parental rights, that will need to be addressed in any reform of family law.

My proposals for reform of family law in the area will shortly be considered by my Cabinet colleagues. I will be also proposing that we forward these proposals to the Oireachtas Committee on Justice, Defence and Equality for consideration, requesting that the Committee would undertake a consultative process and that the Joint Oireachtas Childrens Committee be involved in that process. I have no doubt that such process will indentify issues that might be addressed better or differently and will afford an important opportunity for a considered contribution from the wider community as well as from Members of both Houses of the Oireachtas. The outcome of such a consultation process, undertaken under the Committee’s auspices, would be of great benefit in enabling me to develop nuanced legislation.

As I said at the beginning of my speech, I anticipate that we will have much debate over the next period on the nature of the family. Some commentary on families seeks to hark back to a ‘traditional’ family which must be protected against all other family types. It posits the myth that the nuclear family of married parents and their children is the only traditional family. This view, of course, is not borne out by history. In many senses, the universality of the nuclear family as the only family type is a creation of American advertising of the post-war era. One hundred years ago, children would routinely have been living in families that included parents, grandparents, aunts and uncles. Some would have been reared by grandparents or by aunts and uncles. Children were often sent to childless relatives to be reared when families had too many mouths to feed. That children were often reared in non-traditional families is reflected in the popular culture of the past 150 years which abounds in stories of children growing up successfully in such families. So Anne of Green Gables flourished in late nineteenth-century Canada when rescued by the middle-aged siblings, Marilla and Matthew. Similarly, in the Wizard of Oz, Dorothy’s endless quest was to get home, not to a nuclear family but rather to her Aunt Em.

What mattered then and what matters now is that children should be cherished and nurtured and that there should be certainty in the law relating to their parentage. We all share that common objective. We each can play our part in contributing to that objective. My role is to develop legislative proposals for reform of family law. Some may highlight problems that remain to be addressed. Yet others will provide the concrete evidence on which policies can be developed. The process of change will be difficult. There will be controversies on the road ahead. Not everyone will agree with all aspects of the Draft Bill. We may not always agree. Nonetheless, I am confident that we will achieve an outcome that will provide legal certainty, protection and security for more parents and more children in our society.

Thank you very much.