Why access to condoms was such a controversial issue in Irish law

40 years ago, the Health (Family Planning) (Amendment) Act came into law and liberalised access to contraceptives. 

Labour's Barry Desmond, who was Minister for Health in a Fine Gael-led coalition government under Garret FitzGerald, introduced the bill to replace Charles Haughey's infamous Irish solution to an Irish problem act of 1979, which had stipulated that contraceptives could only be prescribed to married couples for bona fide family planning purposes.

But Ireland was not the free and easy sexual culture that this move might suggest. For a start, it was just two years after the Eighth Amendment, which ensured access to abortion remained illegal, had been inserted into the Constitution.

The contraceptives' bill only narrowly passed the Dáil with 83 votes in favour and 80 against. There was significant opposition from Fianna Fáil, the Catholic Church and the conservative lay groups that had campaigned for the Eighth Amendment. Poorer families, arguably the most in need of the products, could probably still not afford them even if they had no moral objections to using them.

The unpicking of the 1929 Censorship of Publications Act and the 1935 Criminal Law Amendment Act, which respectively censored and banned the importation of contraceptives to Ireland, was slow to say the least. The 1935 Act had, according to historian Sandra McAvoy, delayed "the emancipation of Irish women, not least by subordinating their life and health to their reproductive functions" by many decades.

Access to contraceptives was restricted unevenly through these decades. From 1969, family planning clinics provided contraception and got around the law by asking for a donation, but this was limited in many ways to the urban and monied middle classes. The Health (Family Planning) Act, the 1979 act introduced by Haughey, did little to address these class and geographical limitations on access. While Desmond’s 1985 act would allow the sale of condoms to anyone over the age of 18 without a prescription, rural access remained problematic.

But while the 1985 act was welcomed by many, it was a step too far for those who wished to steer Ireland away from the liberalisation of sexual culture. Far from being liberal, though, the act barely recognised the need for condoms not only for procreative purposes but also to prevent sexually transmitted diseases. Globally and nationally, the world was enduring a HIV/AIDS crisis, yet the continuing Church and State obsession in Ireland with controlling reproductive sex almost ignored this reality.

Nonetheless, the 1980s were the decade which continued to witness transformations and shifts in public attitudes towards sex and sexuality that showed change was slowly on the way. In a memorable 1987 episode of the Late Late Show, host Gay Byrne showed a condom on television, remembered by an interviewee in Laura Kelly’s study as ‘the first time I ever saw a condom or heard what it was called’.

Prior to the passing of the 1985 act, Irish society had ensured a number of transformative events which positioned discussions about women bodies and reproductive rights as vital and central. In the Seanad debate on the 1985 act, Senator Katharine Bulbulia was referring to these events when she said: "This bill has as its backdrop the Kerry babies’ tribunal, the tragic case in Granard, the Eileen Flynn case."

The Kerry babies' tribunal was established in late 1984 in response to accusations of ill-treatment by An Garda Síochána and coercion of Joanne Hayes and her family following the discovery of the bodies of two newborn babies in Kerry in April 1984. Hayes was accused of giving birth to and killing both babies, despite evidence that the baby she gave birth to (the Abbeydorney baby) was stillborn and no evidence of her connection to the murdered Caherviveen baby was ever found.

During the tribunal Hayes spent three days in the witness box when she was questioned by a room full of men about her private life, her affair, her pregnancy, her menstrual cycle and her use of contraceptives. Angered by this treatment, women gathered daily outside Tralee courthouse to object to the virulent misogyny on display in the courtroom.

This mistreatment of a woman came soon after the discovery of the body of 15-year-old girl, Ann Lovett, and her still-born baby in a grotto in Granard, Co Westmeath on a freezing January evening in 1984. Lovett had died of blood loss and her story unleashed a torrent of stories on the airwaves and in newspapers from women who had experienced the traumas of unplanned pregnancies, particularly those outside marriage, in a society which judged and shamed women.

In 1982, teacher Eileen Flynn became pregnant. She was living with her partner, a separated man for whom divorce was not an option as it was banned. Flynn was sacked from her position as a teacher at Holy Faith Convent in New Ross, Co Wexford for this ‘sin’. This was the conservative societal, misogynistic and moralising backdrop to the introduction of the 1985 act.

Despite Desmond’s attempt to liberalise access with the act, such events can explain why restrictions continued to make access to contraceptives difficult. Under the act, condoms could only be sold in chemists, doctors' surgeries, health boards, family planning clinics and hospitals providing maternity services or treatment for sexually transmitted infections.

It was still illegal to advertise contraceptives and use of the birth control pill remained restricted. In response to the Aids crisis for instance, it became imperative that the LGBT community be provided with information on and access to condoms. Gay Health Action (GHA) was founded in February 1985 and published Ireland's first AIDS information leaflet.

The limitations to the 1985 Act meant it was repealed by another in 1992, with access further liberalised. However, the 1992 act still referred to condoms somewhat euphemistically as ‘contraceptive sheaths’ and contained strict rules about the placement of vending machines being nowhere near where teenagers under the age of 17 might be.

It may feel a long way now from the 1985 act, but the slow pace of change in access to contraception has been a revolution in itself. In the 40 years since the first act that allowed access to non-medical contraceptives without prescription, Ireland has not only expanded access even further but also introduced legal abortion, a step that sees us living in a more progressive society than many in the world, including the United States.

In July 2022, the Health (Miscellaneous Provisions) (No.2) Act was signed into law, enabling the introduction of free contraception for women aged 17 to 25, and this has recently been expanded to include women up to the age of 35. The absence of references to ‘family planning’ in our modern health legislation regulating access to contraceptives is a sign that we are, finally, prioritising and understanding contraceptives within the realm of health, as opposed to the historically narrow obsession with procreation.

This piece originally appeared on RTÉ Brainstorm.