| 10.12.2009 | Ireland 
Supreme Court Awards
Visitation Rights to Gay Sperm Donor
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)
FergusRyan
See also
www.irishtimes.com
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