Brief Addendum on Irish Case

A couple of days ago I wrote about a new decision from the Irish Supreme Court.  I hadn’t read the decision then and, I’m sorry to say, I still haven’t.  (It’s way too busy this time of year–there’s a lot of other stuff I need to get up on the blog, too.)  

Professor Arthur Leonard has a more detailed discussion of the case on his reliably excellent blog.    In particular, he includes this discussion of the lower court proceedings:  

However, the trial judge on the merits, John Hedigan, giving great weight to a report prepared by a neutral expert who had interviewed all the parties and who recommended against any compelled contact with McD. Hedigan decided that it was inappropriate to appoint McD as guardian under the circumstances, and that the mothers and their child constituted a “de facto” family

I’m highlighting this because it seems to me that this is one of those cases where an individualized assessment of the specific child’s needs is at odds with a more generalized commitment to an overall policy (the primacy of biology.)  

This is a core problem of family law I’ve discussed before.   The Supreme Court chose broad policy over individual need.   Whether it is right to do can be considered apart from the specifics of lesbian families and the rights of sperm donors.   

But as I read Professor Leonard’s account of the opinion, I realize I was probably a bit harsh in my critique of the Supreme Court.   The court refused to appoint the donor as guardian, which is the role often alloted to the man after the break-up of an unmarried couple.    It recognized that the women were a loving couple, caring for the child in a stable environment.   The court envisioned limited visitation by the man, as was warranted by the best interests of the child.  

While the insistence that only married (and hence heterosexual) families are recognized as families under Irish law is troubling, the opinion is more nuanced than I thought.   Such is the peril of writing before reading the actual opinion.  And I’m incurring that peril yet again, so it’s possible you’ll find me here again tomorrow with yet another revision of my thoughts.


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