I meant to blog this at the time, but Suzy Byrne marked what could be the first step in a major constitutional change (it gives rise to a fascinating discussion in the comments zone) in southern law regarding same sex families. Suzy picks up this concise report from the Irish Times on the day:
Mr Justice Hedigan said there was nothing in Irish law to suggest that a family of two women and a child has any lesser right to be recognised as a de facto family than a family composed of a man and a woman unmarried to each other.
He said the rights of a man who acted as a sperm donor were at least no greater than those of an unmarried father. In considering his application for guardianship the childs welfare was the paramount consideration.
He believed there existed such personal ties between the couple and the child as to give rise to family rights under Article 8 of the European Convention on Human Rights which do not conflict with Irish law
Obviously this still has a long way to go before it gets to challenging the constitution, but given past experience it is one that the Oireachtas would do well to prepare for well in advance. Not least because the potential for conflicting rights is so complex. For instnace, in another piece in the Irish Times Ronan McGreevy reports:
Donnacha Murphy of Unmarried Fathers of Ireland said the case highlighted the absence of fundamental rights for fathers in such circumstances. “The fact that a ‘blood link’ was of little weight and not a determining factor in terms of his decision is an insult to the thousands of unmarried fathers in Ireland.”
In this regard there appears to be a significant difference with UK law, where one of the unintended consequences of giving unmarried fathers close to the same rights and responsibilities as married ones, has been a massive drop in numbers of sperm donors available to Lesbian couples wishing to go down that route.
The key being ‘responsibilities’. Not all sperm donors want the kind of relationship with the child that this man clearly did. For many it is a clean, business transaction. But under UK law the responsibility is both financial and life long.
In this case, the man concerned is taking his appeal to the Supreme Court in hopes of asserting his right as the father. If they find in his favour, those rights are likely to be balanced with similar responsibilities to those that currently pertain in the UK.
This is an issue that could run for years to come…