Women and Justice: Court: Supreme Court of Ireland

Domestic Case Law

McKinley v Minister for Defence Supreme Court of Ireland (1997)

Gender discrimination

The plaintiff’s husband suffered serious injuries in an explosion, one of which impaired his ability to have sex. In the plaintiff’s claim against her husband’s employer, the Minister for Defence, she claimed compensation for loss of consortium at common law. In the past, this action was available only to a husband. The question asked by the plaintiff was whether this was inconsistent with the Constitution, and in particular its guarantee of equality and implied guarantee of spousal equality. The Supreme Court unanimously agreed that restricting a claim of loss of consortium to husbands only was inconsistent with the Constitution, but disagreed on how to respond to the inconsistency. A majority took the view that the defect should be remedied in a positive manner, by extending the action to wives, while the minority thought that the solution was to abolish the action of loss of consortium entirely. Thus, the majority of the Supreme Court held that the effect of the principle of equality of spouses was to extend the benefit of the common law rule to the wife.

Mohan v Ireland Supreme Court of Ireland (2019)

Gender discrimination

Section 17(4B) of the Electoral Act 1997 introduced a provision aimed at addressing a significant disparity in the sex of members of parliament in Ireland (“TDs”). Only 15.1% of TDs elected in 2011 were women. The figure has never exceeded 20%. The 2012 Act tried to solve this problem via candidate selection; it tied the level of political funding allocated to a political party to the gender balance of its candidates. From the first general election after the section came into force, a party would lose 50% of its public funding if at least 30% of its candidates in that election were not women (or if 30% of its candidates were not men). Seven years after that, the minimum requirement for each gender would increase to 40% or the same penalty would apply. The Act deals only with candidature, not election. It also does not compel a party to select any particular candidate, but instead penalises the party with a withdrawal of public funds for non-conformity. In this case, a member of a political party challenged the constitutionality of this measure on several grounds after his party did not select him as a candidate and informed him that their candidate “must be” a woman. He claimed that this was a result of the 2012 Act, in violation of several constitutional provisions, including the equality guarantee in Article 40.1; the right to free speech and association under Article 40.6; and the Article 16.1.1° guarantee that every citizen without distinction of sex is eligible for the Irish parliament. The High Court rejected these claims due to lack of standing; the plaintiff could not show ‘any, or any sufficient, causal nexus between the direction of the party excluding his nomination from consideration at the relevant candidate selection convention and the operation of that provision’. The court was not satisfied that the party would not, without the influence of the 2012 Act, have implemented gender quotas of its own motion. This finding was upheld by the Court of Appeal. The Supreme Court found that the plaintiff had standing, but also acknowledged that this sophisticated piece of legislation was pursuing an important social goal through “positive discrimination” on gender grounds and controlling public funding for political representation. Therefore, the court found that the case could be addressed on its merits rather than decided on the basis of standing and remitted it to the High Court for a full hearing.

McD. v L. Supreme Court of Ireland (2009)

Gender discrimination, International law, LGBTIQ

The appellant, a gay man, entered into an agreement with the respondents, a lesbian couple in a civil partnership, to donate sperm to the respondents so they could have a baby. It was agreed that the respondents would have full care and custody of the child, effectively as parents. They were to be fully responsible for the child’s upbringing, and the appellant, the sperm donor, would be, at most, considered a “favourite uncle.” It was explicitly agreed that the appellant would not have any responsibility for the child’s upbringing and would not seek to influence it. However, following the child’s birth, he attempted to assert rights as the father. While not seeking custody, he sought to be appointed as a guardian of the child and to have rights of access. The respondents opposed his application, and it was their intention to move to Australia, which the appellant sought an injunction to prevent. This case constituted the first time in which the superior courts of Ireland dealt with the matter of parenthood in assisted reproduction, and both the High Court and Supreme Court took different views of the case. McD’s application to be appointed guardian under the Guardianship of Infants Act 1964 was unsuccessful in the High Court, which found that the donor had acted dishonestly and deliberately misled them as to his intentions. Emphasising the child’s best interests, the High Court, while acknowledging the importance of the blood link between donor and child, found that this was a rare case in which it was not in the best interests of the child to have a relationship with both of his biological parents. The High Court rejected the applications for guardianship and access, finding that granting them would result in too great a cost to the child: the “loss of a tranquil and calm upbringing.” The Supreme Court took a different approach, however, sympathising with the donor’s perspective. Importantly, the Supreme Court ruled that, under Irish law, the lesbian couple was not a family. There was a strong rejection of the idea of ‘de facto families’ having any legal status or rights in Irish law. This concept was relied on by the High Court, where weight was afforded to the position of the ‘de facto family’ consisting of the couple and the child. In this vein, the Supreme Court rejected the applicability of Article 8 of the European Convention on Human Rights. The Supreme Court agreed that it was not in the best interests of the child that McD. be appointed guardian, but held that he should have access rights, and remitted the matter to the High Court for determination of the terms of such access. The case is also important regarding the relationship between Irish law and the ECHR, with the Supreme Court highlighting that the Convention is not directly applicable in Irish law and taking a restrictive approach in relation to its interpretation and application. The Supreme Court also warned against domestic courts ‘outpacing’ the jurisprudence of the European Court of Human Rights.

McGee v. Attorney General and Revenue Commissioners Supreme Court of Ireland (1973)

Abortion and reproductive health rights

The plaintiff was a mother whose second and third pregnancies were complicated by medical issues and resulted in her suffering from a stroke and temporary paralysis. She was advised that her life would be endangered if she became pregnant again. As such, she sought to obtain contraceptives, but their sale and importation was prohibited by Irish law. The Supreme Court held that a law prohibiting the importation, sale or advertising of contraceptives was inconsistent with the plaintiff’s right to privacy in marital affairs, an unenumerated right in the Irish Constitution. Although the Court left undisturbed the then-existing ban on sale of contraceptives in Ireland, the use and importation of contraceptives was not prohibited based on the law’s inconsistency with the Constitution.

H.A.H v S.A.A and Others Supreme Court of Ireland (2017)

Divorce and dissolution of marriage, Gender discrimination, International law

The applicant was given refugee status and had successfully applied for permission for his second wife to join him in Ireland. The present case arose when he sought to have his first wife join him. In considering the legal consequences of a polygamous marriage entered into in another country, the Supreme Court ruled that, where a man had married two wives under the laws of Lebanon, the first marriage is valid under Irish law but the second is not. The appellant (husband) had married two women in a manner permissible under the laws of Lebanon (their previous state of domicile). He sought a declaration, pursuant to Section 29 of the Family Law Act 1995, that his marriage to his first wife was valid on the date of its inception. The High Court found the polygamous marriage entirely invalid. On appeal, the Supreme Court reasoned that: (a) rules of private international law require the State to recognize a marriage validly contracted under a foreign system of law unless such recognition is prohibited by public policy; (b) the Constitution and Irish public policy envisage a marriage as a union between two people based on the principles of equality and mutual commitment; (c) there is therefore no bar to recognizing a marriage “that is in fact monogamous, where the only objection is that the system of law under which the couple married would permit more than one marriage;” and (d) Irish law and the Irish Constitution preclude the recognition of a second or subsequent marriage while the first marriage is valid, although that does not mean that a subsequent marriage can never have legal consequences. The Court granted the declaration of the validity of the first marriage because it was valid when contracted and the husband’s subsequent marriage should not preclude that.

Roche v. Roche, Sims Clinic Ltd., and the Attorney General Supreme Court of Ireland (2009)

Abortion and reproductive health rights

The issue in this case was whether embryos, having been frozen and stored in a clinic, are “unborn” and thus protected by the right to life under Article 40.3.3 of the Constitution of Ireland. The applicant-wife brought this suit against her husband, the respondent. The applicant had in vitro fertilization treatment ("IVF") and six embryos resulted. Three of the embryos were implanted successfully in the applicant’s uterus and she became pregnant. The remaining three embryos, at issue in the case, were frozen and placed in storage with a clinic. The applicant and her husband separated, after which the applicant requested that the three frozen embryos be released to her to have them implanted. The clinic refused to release them absent consent from the respondent which he refused to provide. The applicant brought the court proceedings to obtain the embryos on constitutional and contractual grounds. The High Court dismissed the case and the appellant appealed to the Supreme Court. A majority of the Supreme Court held that an embryo is not “unborn” for the purposes of Irish Constitutional law, and that there was no consequential (enforceable) right for the embryos to be released and implanted; Article 40.3.3 only applied after implantation.

De Burca and Anderson v. Attorney General Supreme Court of Ireland (1975)

Gender discrimination

The plaintiffs were two female criminal defendants who chose to be tried by a jury and objected to the Juries Act of 1927, which excluded all women from jury pools except those who opted to be part of the potential jurors list. The Supreme Court ruled the Juries Act unconstitutional because it constituted invidious discrimination on the basis of sex.

Attorney General v. X. and Others Supreme Court of Ireland (1992)

Abortion and reproductive health rights, Sexual violence and rape, Statutory rape or defilement

X was a 14-year-old girl who became pregnant and suicidal after being raped. Her parents tried to take her to England in order to obtain a first-trimester abortion that was illegal in Ireland, but the Attorney General obtained an interim injunction from the High Court restraining the girl and her parents from leaving the country for a period of nine months or from arranging an abortion for her. The family appealed. The Supreme Court held that the Constitution's prohibition on abortion did not prevent a suicidal 14-year-old, pregnant as the result of rape, from obtaining an abortion in Ireland because the suicide was a substantial risk to the life of the pregnant girl. The Court also struck down the injunction prohibiting the girl from leaving the country.