Again with who gets to be the parents.
A potentially groundbreaking case in gay marriage and parenting rights in Ireland, called to my attention by Related Topics, affirms Ireland’s no-gay-marriage law. It may also end up testing the relationship between national and Union rights in Europe.
Reports the Irish Times:
…the Supreme Court was asked to consider a situation where a sperm donor wanted extensive contact with the child, and this was opposed by the lesbian couple. He was not an anonymous donor. Therefore he was in the same position as any other non-marital father under Irish law.
In the High Court Mr Justice John Hedigan had decided that the lesbian couple and the child were a de facto family and were entitled to the protection of their family rights under the European Convention on Human Rights. He found that the father was not entitled to guardianship, and that his having access to the child, at least until he was considerably older, would disrupt the family life of the de facto family. He did not consider his rights as a non-marital father.
The Supreme Court rejected this, and decided that the lesbian couple and the child was not a de facto family and did not enjoy protection of its family rights either under the European Convention on Human Rights or the Constitution. The Constitution only recognises the family based on marriage between a man and a woman, it said.
The couple and sperm donor had decided in advance – and specified in a written agreement – that he would have no obligations to the child, but would be known to him or her, as a “favourite uncle.” After the boy was born, the bio dad changed his mind and wanted more involvement.
The inequality issue here stems from the legal status of the two women. If they were just a married couple with custody of the boy, the father could argue for access rights like any other biological dad not married to the bio mom. (The issue of signing away your parental rights is another issue, which Judy Shapiro is better able to discuss.)
On the bright side, the court could have gone further and given the donor custody:
…the court upheld the trial judge’s decision that it would not be appropriate to appoint the sperm donor as a legal guardian of the child, although he was entitled by Irish law to apply for such an appointment.
However, as long as gay couples have to scrounge for family recognition – trying to gerrymander their marital and parental rights – these kinds of conflicts will keep coming up.