The Irish Supreme Court ruled that a gay man who acted as sperm donor for a lesbian couple is entitled to access (contact) though not guardianship (parental responsibility) in respect of the couple’s child. (McD. v. L.) In doing so, the Supreme Court reversed in part an earlier High Court decision denying access on the basis that this would not have been in the best interests of the child. The Supreme Court, however, did uphold ‘for the present time’ the High Court’s decision not to confer guardianship on the father.
The child had been born as a result of an arrangement whereby the man (who donated sperm at the request of the couple) had agreed that the child would be the child of the lesbian couple. He would take on a ‘favourite uncle’ role, but would not assert parental rights. Subsequent to the child’s birth, the father sought to play a greater role in the child’s life. In particular, he sought to prevent the lesbian couple from moving to Australia with their son.
The Supreme Court ruled that, notwithstanding the earlier agreement between the parties, the biological father enjoyed natural and legal rights in respect of the child.
The Supreme Court felt, in particular, that the High Court had, in denying access, placed too much emphasis on the rights of the couple and had failed to give sufficient weight to the rights of the biological father and the right of the child in respect of its biological father.
Most notably, the Supreme Court rejected the High Court’s decision that the lesbian couple constituted a de facto family, recognised in Irish law by virtue of the incorporation into Irish law of the ECHR. The High Court had ruled that the lesbian couple and the child were collectively entitled to recognition as a de facto family. The Supreme Court ruled that there was no such thing as a de facto family in Irish law. In particular, the Supreme Court noted that under ECHR jurisprudence there was no support for the proposition that a same-sex couple enjoyed family rights. Under the Irish Constitution, moreover, the Court ruled that there could be no recognition for a same-sex couple as a family – even where they had children.
The issue is certainly complex, though it is disappointing (if not surprising) to see the Supreme Court recanting from the more progressive perspective of the High Court, and reverting to a traditionalist, biologically focussed notion of parenthood. Arguably in failing to recognise the couple in law, the Court ignored the lived reality of the child’s day-to-day position as a member of its mothers’ family. It also highlights the precarious legal position of a child being raised by same-sex couples, and the glaring need for legislation to clarify the law in this area.
The decisions are now online at www.courts.ie (the case is called McD v. L – there are three judgments online)
See also www.irishtimes.com