Gay-lesbian dispute over child raises legal issues

Fri, Dec 11, 2009, 00:00

ANALYSIS:A Supreme Court judgment yesterday clarified issues relating to rights of same-sex couples and their children under Irish law, writes CAROL COULTER

THE DISPUTE between a sperm donor and the lesbian couple who had his child, which led to yesterday’s Supreme Court judgment, raises a number of new issues in Irish law which to date have not been addressed by the legislature.

Among them are the legal position of the donors of genetic material in assisted human reproduction; the legal status of non-biological parents who choose to raise a child in a non-conventional relationship; and the rights of a child with regard to his or her biological parents when they are not married to each other.

These issues have been under consideration for at least a decade, since the Commission on Assisted Human Reproduction was set up, reporting in 2005. Its report has been with the Department of Health and Children since.

The Civil Partnership Bill at present before the Oireachtas is silent on the issue of the status of children being raised by same-sex couples, whatever their biological relationship to one of them. Meanwhile, the Law Reform Commission has reported on Legal Aspects of Family Relationships, with recommendations on the rights of non-marital fathers. There are no indications from the Government on what will happen to these recommendations.

In dealing with yesterday’s case the Supreme Court was asked to consider a situation where a sperm donor wanted extensive contact with the child, and this was opposed by the lesbian couple. He was not an anonymous donor. Therefore he was in the same position as any other non-marital father under Irish law.

In the High Court Mr Justice John Hedigan had decided that the lesbian couple and the child were a de facto family and were entitled to the protection of their family rights under the European Convention on Human Rights. He found that the father was not entitled to guardianship, and that his having access to the child, at least until he was considerably older, would disrupt the family life of the de facto family. He did not consider his rights as a non-marital father.

The Supreme Court rejected this, and decided that the lesbian couple and the child was not a de facto family and did not enjoy protection of its family rights either under the European Convention on Human Rights or the Constitution. The Constitution only recognises the family based on marriage between a man and a woman, it said.

It found that Mr Justice Hedigan was wrong in his interpretation of the convention and its applicability in the Irish courts.

Mrs Justice Susan Denham pointed out that even the European Court of Human Rights has not recognised same-sex couples as “family life” under Article 8 of the convention, and in one case specifically rejected that contention. The High Court was wrong in treating the couple and child as a family under the convention, she said.

But even if that were not so, Irish law would conflict with such a scenario and would govern the situation. “Under the Constitution it has been clearly established that the family in Irish law is based on a marriage between a man and a woman,” she said. “There is no institution in Ireland of a de facto family.”

The court also decided not to examine in any detail the relationship between the lesbian couple. It decided that the key relationship is that between the child and its birth mother. The mother’s partner has no specific rights, though her position in the child’s life is one factor to be taken into account in considering the best interests of the child.

Mrs Justice Denham did acknowledge that the child lived in a loving and caring situation with the couple, and Mr Justice John Murray said the relationship between the couple and the child was one of the factors to be taken into account when considering the child’s welfare. The situation of a party other than a natural parent was not unique in considering custody and other rights, he pointed out, and also arose when a child had been raised for a number of years by grandparents or foster parents, for example.

The four judges who gave written judgments were unanimous in finding that the father was entitled to apply for guardianship and access, though, as in all cases involving non-marital fathers under Irish law at present, he would not be granted it automatically. The welfare of the child was paramount, and this was the yardstick against which the application would be considered.

The case arose out of a situation where the lesbian couple, who were in a long-term committed relationship, decided they wanted to have a child with the aid of a sperm donor. They decided it would be better for the child if the sperm donor was known to them and the child, and had a relationship with the child, who would know this was his or her biological father.

They drew up an agreement with the father, in this case specifying the nature of the relationship between him and the child, including the fact that the couple would parent the child, while he would occupy the role of “favourite uncle”. He would have no financial or other obligations towards the child, and his contact with the child would be by agreement with the couple.

When the child, a boy, was born, the father wanted more involvement than the couple felt appropriate and after a number of fraught meetings, relations between the father and the couple broke down.

They decided to visit Australia for a year and he took legal proceedings to prevent this, along with proceedings seeking guardianship and access to the child. He lost in the High Court and appealed to the Supreme Court, where he won the right of access, though not guardianship.

The court recommended that the parties attempt to resolve the issue of access by agreement. Failing this, they should return to the High Court.


Carol Coulter is Legal Affairs Editor