Sperm donor wins right to see child
Progress Educational Trust20 December 2009
The Irish Supreme Court has ruled that a 42-year old man should have access to a lesbian couple's son who was conceived using his donated sperm. The highest court in Ireland ruled that the man has 'natural rights' over the son and that while he should not be entitled to guardianship over the boy it is in the child's best interests for the father to be granted contact.
The couple, who had originally decided that they wished to have a child who would know the donor father, had drawn up an agreement that explained that the donor would have the status of a 'favourite uncle' but restricting his contact to that agreed by the couple as the child's parents. This arrangement broke down as the donor father sought a greater roll and an application was filed by the father to prevent the couple leaving the country for a year-long trip to Australia, the court finding that the agreement was only binding in so far as it protected the child's best interests.
The decision of the Supreme Court overrules that of High Court Judge Mr Justice Hedigan who had found that the lesbian couple and boy constituted a 'de facto family' and were thus eligible for protection under both the Irish constitution and Article 8 of the European Convention on Human Rights (ECHR). On the basis that visitation from the father would be disruptive to the family, Mr Justice Hedigan had blocked both guardianship and contact; however, the Supreme Court found that the lesbian couple and child did not constitute a family either under European Human Rights legal precedent or under Irish national law (which would take precedence in the national court in any event). On the basis that they were not a family unit the court denied that they were entitled to protection of their family life under the ECHR and granted contact rights for the father.
The Supreme Court oriented its enquiry to the relationship between the birth mother and the child and the father and the child. The court did not make detailed enquiry into the relationship between the lesbian partners, taking the view that though the child's welfare was of central importance that the lesbian partner of the birth mother had no rights over the child and must be viewed in the same way as a foster parent or other family members such as grandparents who might assist in raising a child.
Though sections of the Irish legal system have been attempting to develop new legislation to clarify the legal rights of various parties with relation to non-conventional parental relationships nothing has moved beyond the report stage with neither the 2005 Commission on Assisted Human Reproduction report on the matter nor the Law Reform Commission report on Legal Aspects of Family Relationships having been reflected in the current Civil Partnership Bill before the Irish legislature (the Oireachtas).
Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.