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.