The Irish Supreme Court has issued an opinion that ties into many themes discussed here. (I’ve only a bit of time to comment today and haven’t yet read the full opinion, but here’s other press coverage. Because I’m in a rush I’m going to link to tags rather than specific past posts. )
The facts are simple. An Irish lesbian couple wished to have a child. They asked a gay male friend to provide sperm. They wrote and signed an agreement that the child would be raised by the two women and that the man would be regarded as a favorite uncle. He would not have the role of parent. He would have no obligation to support the child.
After the child was born, things did not go well. The man wanted more time with the child than the women wished to give him. Tensions mounted. Ultimately, tThe women decided to go to Australia for a year. The man went to court to prevent them from going with the child.
The initial court that heard the case (called the High Court) ruled in favor of the women. The judge reasoned they were a de facto or functional family, entitled to protection under the European Convention on Human Rights. The man’s visitation, at least while the child was very young, disrupted the family’s life.
The man appealed to the Irish Supreme Court which just ruled in his favor. Under Irish law, a sperm donor is a father by virtue of the genetic link to the child. (He need not have any existing social relationship to the child.) By contrast, one of the two women (the one who did not give birth) has no recognizable legal relationship with the child and so has no particular rights. The only families entitled to protection under Irish law are married (and therefore necessarily heterosexual) families. (I’ll be interested to see if the European Court takes up this point.)
The Supreme Court did not fully resolve the matter, as it only recognized a right of access in the man. It did not enter any specific order regarding the child’s time with each parent. Instead, it suggested the parties negotiate a settlement and, failing that, return to the High Court to determine what arrangement would be best for the child. As to this question, the relationship of the child with both women might be taken into consideration.
This case demonstrates so many of the difficulties faced by families that do not comport with the heterosexual-and-married model. The court refuses to recognize the existence of such families. It makes marriage the absolute prerequisite to legal protection for a family. It therefore is untroubled by the donor’s interference with the women’s family, for it is not a recognized family in the first place. The donor is able to prevent the women from acting autonomously and moving where they wish to move.
Is it any wonder that lawyers advise their clients to use anonymous sperm donors? For surely what has made the lives of the women and their son so difficult is that they chose a known donor. Perhaps the women believed that they had some protection because they entered into an agreement, but agreements regarding parentage are rarely effective. Indeed, in this legal regime, the only way for a lesbian couples or single women who wish to parent without the participation of a man to succeed is to use an anonymous donor.
I know that some readers will respond that the women here had no right to create a family of their choosing and for the moment, I’m hoping we can just agree to disagree on that point. The reality is that women (lesbian couples or single women) will want to create families like this, and decisions like this one will predictably drive them to use anonymous donors.
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I think this (and media piece you linked to) is playing up the lesbian relationship aspect of this case. Regardless of the child’s mother’s relationship, it supported the child’s right to have a continued relationship with his bio-father – who happens to be gay himself (the child’s mothers and father – or who you might like to refer to as mothers and the ‘sperm donor’ – sexual and relationship preference is not the point). I think it is noteworthy to mention that the child’s mothers still have custody.
I know you will disagree with me on this but these arrangements should not be focused on adults sexual or relationship preferences (regardless if homosexual/heterosexual/single). All parties should be encouraged to work together for the best interests of the child.
Although it is unfortunate that these types of adult differences, which hinder a child’s relationship with his parents and bio-father-mother/family, make their way into the family court system, I applaud this ruling . On the other hand I realize that it does not go in favor of ‘open donors’ and open families. The law really cannot provide moral or ethical solutions.
Here is another media piece that doesn’t seem quite as biased:
http://www.irishtimes.com/newspaper/ireland/2009/1211/1224260512642.html
Quote:
“LEGAL JUDGMENT: THE SUPREME Court has unanimously ruled that the gay friend of a lesbian couple who donated his sperm to one of them so she could have a child is entitled to access to the three-year-old boy but not guardianship.
The man, as a biological father, has the right only “to apply” to be appointed guardian and it is for the courts to decide the issue of guardianship in all the circumstances, with the welfare of the child the paramount consideration, the five-judge court ruled.”
I also wanted to add these types of custody disputes happen ALL THE time in heterosexual divorce cases and the people who primarily are hurt are the children. (These types of cases make it sound as if it is only a homosexual/single parenting predicament but really I think it is more of a political issue) ‘Marriage’ doesn’t protect divorcees from acting autonomously and moving where they wish to move. When anyone brings a child into the world, no matter who they wish to partner with, integrity, understanding and cooperation, for the child’s sake, is the ONLY way to proceed.
Sorry to inundate your blog with comments but I was really happy to read (and wanted to share) a new ‘opinion’ piece on this story which I personally found to be VERY refreshing!
Crucial rights of the child vindicated
BREDA O’BRIEN
http://www.irishtimes.com/newspaper/opinion/2009/1212/1224260585386.html
“The Supreme Court decision in the sperm donor case has profound implications
THE WELFARE of the child is paramount. This principle, abused so many times in Irish society, was reasserted with great firmness this week in the Supreme Court.
To quote from Mr Justice Fennelly’s judgment, “From the point of view of the child, the psychiatrists were in agreement that a child should normally have knowledge, as part of the formation of his or her identity, of both parents, in the absence of compelling reasons to the contrary. Scientific advances have made us aware that our unique genetic make-up derives from two independent but equally unique sources of genetic material. That is the aspect of the welfare of the child which arises.”
These last sentences are the key to the importance of this judgment. Children come into being because of mothers and fathers. The right of a child to have knowledge of and contact with both was reasserted. It may have been hailed as a triumph for fathers, or erroneously described as a disaster for same-sex couples, but in fact it is primarily a triumph for children.”
Wonderful common sense from a court system at last when it took the welfare of the child as being of paramount consideration and worked around that theme. It seems the court wasn’t convinced that being born via artificial insemination meant a child magically didn’t need a dad in its life. Hopefully the US judges will one day wake up and remember the words of Shylock.
I think that you are starting from an assumption that it is always in the best interests of the child to have the donor be a legal father. We disagree about that.
Suppose a panel of trained social workers examined the child and all three involved adults and decided 1) that the child had full parental bonds with both women and no parental bond with the man; 2) it would be best for the child to remain in the household of the two women with occasional contact with the man. Would you accept that result as being in the best interests of the child and therefore, the right thing for the judge to do?
I didn’t really post the case to re-open this discussion (which anyone who’s interested can find in the past month or so on the blog.) The point I wanted to make is that this sort of decision clearly encourages the use of anonymous donors. I would imagine to some people that is a greater problem than a known donor who does not have parental rights. I think it is unrealistic to imagine at this point that the use of donor gametes will be abolished, so it may well be that the real choice is between known donors who are not legal parents and unknown donors.
The decision sounds medieval. I love Ireland. My mother’s people were guerrilla commanders in the war that created her. But, it IS one of the most catholic republics in the world. And, a conservative catholicism at that (stems from the effect of Janzenism on the ‘Nooth which is ironic. But, that’s a whole other story). Anyway, I think(?) there is a right of appeal to the President. She is a really smart lawyer. Grew up in the six counties, accepted to the Queen’s Bench, then a law professor. I heard her speak at Kane Hall.
‘Medieval’ – why is the fundamental need of a child to know and identify with both of his/her genetic parents medieval? Almost every experiment in raising children outside of the nuclear unit has been doomed. Although I’m very liberal (exceptionally so) and strongly believe all people should be able to practice whatever sexual activity they like,even supporting the right for those in incestuous relationships and poly-relationships to also have their relationships sanctioned and granted recognition just as homosexual marriage has. I still see the need to for children to be brought up in contact with both genetic parents.
I don’t think this case is about the right of the child to know the genetic parents. The women chose to use a known donor, thereby protecting that right for the child. No one is suggesting that the knowledge be erased from memory or records. Rather, I think what is at issue is the ability of people other than married heterosexuals to form equally valid families.
If one believes that the most important relationships with a child are genetic, then it follows that no family apart from one man/one woman can be a valid and protected family. But if you think that the most important links are psychological/social then all sorts of other family forms can be valid, including single-parents and two parents of the same sex.
It’s striking to me that the court here clearly cares about more than just genetics–it cares about marriage as well. A non-marital but fully genetically related family wouldn’t get full protection either.
I’m with Sandy May.
The focus on genetics is not as bad as that California case where DNA showed a different father, but the law conclusively presumed that the man who was married to the woman was obliged. THAT is the most unreasonable focus on traditional marriage I’ve ever seen. But, Julie is right, the focus on genetics DOES undercut non-traditional forms. This is not to say that it is unimportant for the child to know his/her genetic ancestry. That’s important for a host of health related reasons. Nor does it mean that deadbeat dad’s should be able to avoid their financial obligations where parentage is established by DNA . Nor does it mean that the child ought not be able to elect to contact his/her genetic parent if that is the child’s choice. What it does mean is that it is just plain unreasonable to ignore the original intentions of all parties. I don’t know Her Excellency, just met her in passing at a hurling gig and heard her at Kane Hall. But, she struck me as forward thinking. And, a catholic woman from the six counties who gets accepted as a Brit barrister has got to be a strong person. I’ll check with some of my Irish friends and see if the right of appeal runs to civil.
initially the issue was not about transferring custody of a child from a stable home, but about allowing the women to separate him entirely from his biological father, by moving to australia. Not a stable and secure move in my opinion.
Julie are you saying that the law must allow the two women total freedom in cutting a child off from its biological father, so as to prevent them from going to an anonymous donor?
(of course, legislation against anonymity would make that irrelevant)
First, I’m not sure your point about what was contemplated is factually correct. I don’t think the move to Australia was meant to be permanent. They had family there and planned to visit. They might have stayed for as much as a year. While this would have disrupted the man’s contact with the child, I’m not sure we can say more than that. (Here is a link to a page from which you can reach the various opinions of the Supreme Court judges:
http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/pagecurrent/59CCE3566DB816518025758C00591850?opendocument&l=en
Beyond that, what I would say is that the sperm donor ought not to have parental rights. In general, we give parents great freedom to make decisions about who their children see and who their children do not see. We assume that parents are best able to assess what is best for their children. There’s no reason to doubt that here–indeed, the court-appointed expert suggested it was so.
I don’t think the women intended to cut the child off from the donor. I do think they meant to protect their own autonomy as parents. And in many ways, I think the members of the court recognized that their desire to do this served the child well.
More generally, if you do not give women a way to use a known donor and still have autonomy as parents, then many will choose to use anonymous donors. You may prefer that women not become autonomous parents (by which I mean parents without the participation of men), but a significant number of women–some as lesbian couples and some as single mothers–do want to do this. And the world being what it is, they will. Perhaps (from your perpsective) the question ought to be how to make the best of it. And it seems to me that would be to have clear law that the donor is not a father, so that women are free to elect to use known donors. That’s better (again, from your point of view) than women choosing anonymous donors, isn’t it?
The received wisdom is no appeal to the president. She has the power of pardon upon advice of the Dail and you can note any complaint, but no real revisory power. Apparently, the standard route is ECHR or the European Court. And, that’s not a sure shot. Sometimes SC Ireland is the end of the line. Wish I knew more about the EU….Oh, and people move all the time. Australia is far from Ireland as a matter of miles, but not families. The Fields of Athenry and so on.