ANALYSIS:Legislating on the issues of same-sex couples and sperm donation can no longer be avoided, writes Carol Coulter.
CONCLUDING HIS High Court judgment on the guardianship application of a sperm donor on Wednesday, Mr Justice John Hedigan called for the legislature to give urgent consideration to the existence of same-sex couples, in a situation where they wish one of them to bear a child.
The Government is expected to publish its Civil Partnership Bill in the coming weeks. However, it is not expected to deal with the vexed question of same-sex parents.
Same-sex parenting may arise in a number of ways. The couple may want to apply to adopt. In many instances, one of the partners may already be a parent because of a previous heterosexual relationship or may become a parent through assisted human reproduction. The growth in such unconventional families cannot continue to be ignored. It raises profound ethical and legal questions which need to be discussed very calmly and seriously. Leaving them to the courts to be decided on a case-by-case basis will not do any longer.
Such a debate is not starting with a blank slate. We have international conventions and international jurisprudence. We have judgments from the Irish courts. In 2000, the then minister for health, Micheál Martin, set up a Commission on Assisted Human Reproduction. It reported in 2005.
The subsequent Minister for Health, Mary Harney, sent it to the Oireachtas Committee on Health, where a sub-committee debated it for a year, and then produced a report, endorsing most of the commission's recommendations, but not those relating to the status of an unimplanted embryo. This report went back to the Department of Health, where it has languished since.
In relation to all the matters considered, it stressed that the best interests of the child should prevail. However, that does not settle anything, as there are different views as to what constitute the best interests of the child.
The preamble to the United Nations Convention on the Rights of the Child pledges "the necessary protection and assistance" to the family, without defining what the family is. Clearly, different cultures in different parts of the world include family forms different from that familiar to us, where two biological parents rear a child or children largely alone, though that is no longer the only kind of family in our society.
Article 7 of the convention goes on to state that the child has "as far as possible, the right to know and be cared for by his or her parents". It can be assumed that the signatories to the UN convention considered the right to know both parents referred to biological parents. However, Mr Justice Hedigan pointed out that this, while ratified by Ireland, has not been incorporated into Irish law.
The European Convention on Human Rights (ECHR), incorporated into Irish law in 2003, contains in Article 8 a right to protection for privacy and family rights. Again, the family is not defined, but subsequent case-law defined it to include "de facto families". These cases concerned heterosexual parents not married to each other. On Wednesday Mr Justice Hedigan found the unit of the lesbian couple and the child born to one of them with the donated sperm of the applicant, to be such a de facto family, although he acknowledged that he was unaware of any ECHR case having done so.
However, there is no recognition of de facto families in the Constitution, which refers only to the family based on marriage. The incorporation of the ECHR into Irish law was at sub-constitutional level, so if there is found to be a conflict between constitutional rights and convention rights, the Constitution will prevail. It is not yet known whether this latest case will be appealed to the Supreme Court.
Meanwhile, the issues raised are not going to go away. Many people have an instinctive abhorrence of the idea of a same-sex couple forming a family with children, and stress the importance for a child's psychological wellbeing of having the input of both biological parents. Others are uncomfortable with the many complex parental combinations made possible by new reproductive technologies.
Yet there is no evidence of children being damaged by being reared by same-sex couples. It is also widely recognised that children reared by single parents, by adoptive parents, by grandparents or other relatives, in foster families, in forms of extended families prevalent in other cultures, unless affected by conflict, war or social or emotional deprivation, usually grow up as healthy and productive members of society.
The welfare of children raises many issues other than family form, and a debate focused exclusively on this will do little to further child welfare and the rights of children.
The Oireachtas Committee on the Rights of the Child is at present debating a constitutional amendment on this subject, although the debate is as yet in its infancy.
The Commission on Assisted Human Reproduction made a number of recommendations on this issue, touching on the nature of parenthood. The foremost of them was that there should be a regulatory body for assisted human reproduction, which would cover issues such as consent, counselling and treatment methods for those seeking assistance in becoming parents, including those in same-sex relationships. It recommended that children born of such treatments should, on maturity, know the identity of the donor.
The Law Reform Commission plans, in its third programme of law reform, to consider the rights and responsibilities of fathers in relation to guardianship, custody of and access to their children and the rights and duties, if any, of grandparents especially where parental relationships break down. It will also be considering the regulation of assisted human reproduction.
It is important that all these strands are drawn together, so that there can be a balanced and nuanced debate on the best way to nurture and protect children in a very rapidly changing world, where the family forms and legal frameworks that existed up to now no longer suffice. A free-for-all, punctuated by occasional forays to court, will not serve Irish society, or its children, well.
Carol Coulter is Legal Affairs Editor of The Irish Times