The Mothers Rights in the context of the Adoption Act 1974

Courts website: supreme court 2002 

Northern Area Health Board & ors -v- An Bord Uchtlala & anor [2002] IESC 75

In G. v An Bord Uchtála [1980] IR 32 a majority of this Court held that an unmarried mother had rights under Article 40.3 of the Constitution. The matter is succinctly set out in the judgment of O’Higgins C.J. at page 54 to 55 of the Report under the heading “The Mother’s Rights” as follows:-

“In the first place it should be noted that the mother is not the mother of a family, in the sense in which the term is used in the Constitution. Article 41 of the Constitution, which recognises 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, refers exclusively to the family founded and based on the institution of marriage. It is this family which in, Article 41, s.1, sub-s.2, the State guarantees to protect in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State.

But the plaintiff is a mother and, as such, she has rights which derive from the fact of motherhood and from nature itself. These rights are among her personal rights as a human being and they are rights which, under Article 40, s.3, sub-s.1, the State is bound to respect, defend and vindicate…Suffice it to say that this plaintiff, as a mother, had a natural right to the custody of her child who was an infant, and that this natural right of hers is recognised and protected by Article 40 s.3, sub-s 1, of the Constitution. Section 6, sub-s. 4, and s.10, sub-s. 2(a), of the Guardianship of Infants Act 1964, constitute a compliance by the State with its obligation, in relation to the mother of an illegitimate child, to defend and vindicate in its laws this right to custody. These statutory provisions make the mother guardian of her illegitimate child and give the mother statutory rights to sue for custody.

However, these rights of the mother in relation to her child are neither inalienable nor imprescriptible, as are the rights of the family under Article 41. They can be alienated or transferred in whole or in part and either subject to conditions or absolutely, or they can be lost by the mother if her conduct towards the child amounts to an abandonment or an abdication of her rights and duties.”

G. v An Bord Uchtála was, of course, decided in the context of the Adoption Act 1974. The detailed provisions of the 1988 Act are specifically directed towards protecting the more powerful rights of the married parents under Article 41.

However, the provisions of the Act give equally effective protection to the rights of the unmarried parent, while also taking into full account the constitutional rights of the child.