The Gazette 1974

Article 41 of the Constitution Per Walsh J. It is claimed that Section 17 is in- consistent with Article 41(1) of the Constitution in that it violates the inalienable and imprescriptible rights of the family in a matter which the plaintiff claims is peculiarly within the province of the family itself. This Section attempts to frustrate a decision made by the plaintiff and her husband for the benefit of their family as a whole, and thereby attacks and fails to protect the Family in its Constitution. Furthermore it is claimed that Section 17 is inconsistent with Article 41(2) of the Constitution, in that it fails to recognise and give due weight to a private family decision of the plaintiff and her husband touching her life within the home, and thus endangers the plaintiff's life, and re- fuses to allow her to live her life within the home. It is to be noted that Articles 41, 42 and 43 emphati- cally reject the theory that there are no rights without law, no rights contrary to law and no rights anterior to law. They indicate that Justice is placed above the Law, and acknowledge that Natural Rights or Human Rights are not created by law, but confirm their exis- tence and give them protection. The individual has natural and human rights over which the State has no authority. The Family as the natural primary and fundamental unit group of Society has rights as such which the State cannot control. How- ever the individual as a member of Society, and the Family as a unit of Society, have duties and obligations to consider and respect the common good. As O'Byrne J. stated in Buckley v. A.-G. (1950) I.R. 67—the power of the State to act for the protection of the common good is not one reserved for the Legislature, because the decision of the Legislature can always be reviewed by the Courts. This means in concrete term* that the Oireachtas is not free unjustifiably to e n c r o a ch upon the fundamental rights of individuals or of the family in the name of the common good—or by act or omission to abandon or to neglect either the common good, or the protection or enforcement of the rights of individual citizens. In considering Article 41—the plaintiff's most impor- tant claim—the state of her health is immaterial. The strong wording of the Article is stressed where the State, while recognizing 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, guaranteed to protect it in its constitution and autho- rity as the necessary basis of social order, and as in- dispensable to the welfare of the Nation and of the State. Furthermore, the parents are recognised as the natural guardians of the children of the family, and those who have the right to determine how family life is to be conducted. It is a matter exclusively for the husband and wife to decide how many children they wish to have—and the parents have a correlative right to agree to have no children. But any action on the part of either husband or wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of that human life. The sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. If the husband and wife decide to limit their family or to avoid heaving children by use of contraceptives this is a matter peculiarly within the point decision of the husband and wife, and one into which the State 52

to privacy in regard to her marital relations—but, in a wider way, by frustrating and making criminal on her part to effectuate the joint decision of husband and herself, to avail themselves of a particular contraceptive method, so as to ensure her life and health, as well as the integrity, secutiry and well-being of her marriage and of her family. Per Budd J. There is no presumption in favour of the constitutionality of a pre-Constitution Statute. Section 17 was therefore only carried forward if not inconsis- tent with the Constitution. The construction of the Con- stitution is essentially a matter for the Courts. It is not contested that the plaintiff considered her decision to be the best open for her. Her husband agreed with her. The State guarantees as far as practicable by its laws to vindicate the personal rights of the citizen. What more important personal right could there be in a citizen than that to determine in marriage his atti- tude and resolve his mode of life concerning the pro- creation of children. While "personal rights' 'are not set out specifically nevertheless in our society, the right to privacy including that of marital relationship is uni- versally accepted. S.17 is in conflict with the personal rights of the citizen as to the guarantee contained in Article 40, Section 3(1) to respect, defend and vindi- cate the personal rights of the citizen relative to the privacy of married life and marital relations. Per Griffin J. One of the personal rights claimed on behalf of the plaintiff is the right of privacy in her marital relations with her husband. The Constitution does not define the personal rights guaranteed by Article 40. It was howver pointed out by Kenny J. in Ryan v. Attorney General (1965), I.R. at page 313 that the general guarantee in Article 40(3) extends to rights not specified in Article 40, and that there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all. The Courts have not attempted to define with exactitude or to make a list of the rights which may properly be included in the category of personal rights, but Kenny J. instanced the rights to bodily integrity and the right to marry. Inherent in the right to marry is the right of married persons to establish a home and bring up children. The right of marital privacy is one of the personal rights guaranteed by Article 40, Section (3) (1). In that subsection, the guarantee of the State in its laws to respect the personal rights of the citizen is not subject to the limitation of "as far as practicable". In my opinion, a statute which makes it a criminal offence for plaintiff or her husband to import or to acquire possession of contraceptives for use within the marriage is an unjustifiable invasion of privacy in the conduct of the most intimate of their personal relationships. Accordingly Section 17 (3) is inconsistent with the Constitution. Per Fitzgerald C.J. ( dissenting ). The right to marry and the intimate relations between husband and wife are fundamental rights which existed, and have existed, in most, if not all, civilised countries for many cen- turies. These rights were not conferred by the Consti- tution in this country in 1937. The Constitution goes no further than to defend and vindicate and protect those rights from attack. If Section 17 prohibited the use of contraceptives, it might reasonably be held to contravene Article 40. The Section howver does not do so, and, in my opinion, is not inconsistent with any of the clauses of that Article.