The Irish Times – Saturday, December 12, 2009
“Crucial rights of the child vindicated”
“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.
The case arose because a gay man agreed to donate sperm to a lesbian couple, and to act as a “favourite uncle”. The lesbian couple were threatened by the fact that after the birth of his son he could no longer maintain the fiction that he was a favourite uncle, but instead was a father, and the relationship broke down.
The High Court dismissed his right to access, saying that it was not in the child’s best interests. In a triumph for common sense and human decency, the Supreme Court found that it is in a child’s best interests to know and have contact with his or her father. It was also reiterated that the primary relationship with the mother is of vital importance.
The sexuality of the parties involved is a side issue. Much has been made of the fact that Mr Justice John Hedigan’s decision in the High Court to view the lesbian couple as a de facto family has been found to be without basis in either European or Irish law. However, what the Supreme Court judges said was that there is no such concept as a de facto family in Irish law for either heterosexuals or gay people.
“The situation of a party other than a natural parent”, as Mr Justice Murray put it, referring to the mother’s lesbian partner, was similar to cases where a child has been raised for many years by grandparents or foster parents.
Furthermore, the existence of a de facto family was not considered central to the case. “If the Court were to conclude that access by a biological father was in the best interests of the child, then such conclusion could not be overridden on the grounds that there was a non-marital heterosexual family in existence.”
The Supreme Court found that the man was in exactly the same situation as any other non-marital father, and the lesbian partner of the mother was in exactly the same situation as any other third party who is not a natural parent.
Incidentally, Irish law does not recognise an automatic right to guardianship by the father. There is a strong argument to be made that non-marital fathers should be presumed to have automatic rights to guardianship unless challenged – unlike the current situation where they are presumed to have few if any rights.
The court did not privilege the biological link above all other factors, as the welfare of the child would require that many other factors should be taken into account. However, it unequivocally overturned every ground on which Mr Justice Hedigan found it was not in the child’s best interest to have contact with his own father.
As Mr Justice Fennelly put it, “The father, in the present case, stands as proof that participation in the limited role of sperm donor under the terms of a restrictive agreement does not prevent the development of unforeseen but powerful paternal instincts.”
This case has huge implications for anyone contemplating attempting to become pregnant through the use of donor eggs, sperm or embryos. Last weekend, at the launch of a paper which I wrote for the Iona Institute, Making Babies – Towards a Child-Centred View of Assisted Human Reproduction , Joanna Rose made a presentation. This young woman was conceived using donor sperm, and may have as many as 300 half-siblings. In 2005, she took a case to the High Court in the UK. Donor anonymity was found to breach the rights of a child to an identity, and donor anonymity was banned. Joanna Rose maintains that ending donor anonymity is the bare minimum, and that the law should enshrine the right of children to be reared, where possible, by their own mothers and fathers.
Adoption is sanctioned because it vindicates the right of a child, who is in need of protection, to a family. Joanna Rose says donor conception violates this principle, because a child is deliberately brought into being in the full knowledge that the child will be reared without proper access to one half, or all, of his or her genetic and ethnic heritage, and his or her kinship networks. This is no small matter for a child, and many, many donor-conceived children are now witnessing the sense of loss and bewilderment that our reproductive experiments have left them with.
If we are serious about the welfare of children, the badly needed legislation on assisted human reproduction will follow the lead of the Supreme Court this week, and recognise that children’s rights come before adult needs.
Making Babies – Towards a Child-Centred View of Assisted Human Reproduction, is available at www. ionainstitute.ie/home.php”