Towards the normalisation of same sex families…?

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 child’s 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…

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  • Rory

    I don’t know if this clip is pertinent to the debate so I offer it without prejudice.

  • Animus

    I wonder if this will lead to a kind of contractual arrangement for informal sperm donors. What happens in these cases when a surrogate mother changes her mind? Is it not a similar issue?

    While I’m sympathetic to this man’s case, he seemed to go in with one idea – as a business transaction – and change it later. This is not the same as an unmarried father who is denied access to their child.

    Let’s face it, there are lots of unmarried or divorced fathers who aren’t coughing up to pay for their offspring or requesting access to their children. Unmarried fathers face discrimination in family rights, but they are certainly not the only ones.

    Ultimately I don’t see how this is a case of conflicting rights. Shouldn’t the right of the child be paramount and a decision taken on that basis?

  • BfB

    ‘He said the rights of a man who acted as a sperm donor’

    Kiss your mother, father, personal responsibilty, sweet childhood days goodbye. Have a look at the US teen culture to see what you’re in for.
    Tsk, tsk.

  • aquifer

    There are many same sex couples with children, why should these children not legally be considered as children of a married couple?

  • Rory

    In this case it strikes me that the man who donated his sperm for monetary reward had abrogated all rights towards any relationship with the resulting child and held no right other than the right to the agreed sum of payment which he does not dispute he received.

    The mother who carried and gave birth to and cared and nurtured for the child clearly has rights in that relationship and if her partner also acted in that care and nurture then I sympathise with this limited recognition of her rights.

    But all must be subservient to the rights of the child, as has been rightly observed, and the child must be given the right at a timely stage of development to know its father (I hesitate to say “natural father”) should it choose and any wishes of mother or her partner which might conflict with the child’s exercise of this right must be secondary and the child’s rights must take precedence.

    It is this understanding I believe that informs the existing English law in this regard and while lesbian couples seeking motherhood without having sexual congress with a male might feel hard done by because the source of sperm donors has “dried up” (unfortunate choice of words perhaps) as a result of potential donors (often gay men) shying away then I am afraid that simply is “tough”. Life simply isn’t fair and there is no reason born of compassion or otherwise that can allow the law to satisfy the wants of a same-sex couple over the right of a child to know and form a relationship with both biological parents should either or both present no harm to the child and providing that the child so chooses.

  • F Flintstone

    I don’t think its fair on the children to be honest who would be bullied becuase of it at the very least and likely grow up emotionally scarred. Maybe two womaan could be able to raise a child but certainly not two men it’s totally amoral and wrong.

    It damages family values and there are concerns about abuse and pedophilia which has increased since the age of constent has been lowered. The age of consent should be 21 to protect kids from predatory gsy men, this isn’t England and it has no place in either of the cultures here.