judgment in access case in Irish courts - views please

[drivingmisscrazy]

some of you may be interested in this - it's an example of what can happen when things go wrong in a context where the couple have no legal standing as parents (exactly my situation as the non-bio mother, living in ireland)
www.irishtimes.com/newspaper/ireland/2009/1211/1224260512642.html

the full judgments are available here

the relationship clearly broke down, they weren't clear enough about what they meant by access and it seems to me in a context where they had agreed to allow the donor to see the child that the court had to uphold this right. What's more worrying is the overt and unadorned statement that the couple and their child do not constitute a family.

What do you think? the father's rights lobby will be all over this like a rash

Really interesting, drivingmisscrazy. We thought a lot about this kind of scenario when we set up our situation (lesbian couple with an involved donor). Generally, I do agree that the child's rights to know their parents (biological or non) should trump parental convenience; I also agree that a father in this position should not be given full parental rights or disrupt the existing family unit.

And yes, I had a sharp intake of breath when I read about them not constituting a family...

It just shows how very vulnerable lesbian and gay parents (particularly non-biological ones) are in these arrangements. Our best protection is to go through clinics - which, of course, denies the children the chance to grow up knowing their full biological heritage.

No easy answers.

yes hester I agree - it seems really silly that the effect of judgements like these (and like you, I broadly agree with the access arrangments - the couple obviously didn't define what they meant by 'access' and then arbitrarily decided to exclude the father, although he clearly didn't behave very well either) is to push lesbian couples into the medicalised and anonymous route, rather than providing good legal frameworks for more complex family units. Our DD sees her father 4 times (or so) a year an arrangement to which we are just as committed as he is. It's NOT always easy, but we think that it's what is best for her. The irony here is that the absence of any framework meant that what was, in essence, a dispute about access ended up in the Supreme Court, which is most definitely not where it belongs

The best protection for non-bio mums is to adopt. This is the only way to get full rights. I guess the change of law recently which means non-bio mums can go on the birth certificate if the couple are CP'd will also make a huge difference - although not very helpful for those of us who have already given birth!

This problem is the exact reason we went through a clinic - you just never know how a donor will feel once a child has been born.

but the point is that the option to adopt is just not available under Irish law; nor do they recognise adoptions from other jurisdictions unless they conform to Irish adoption law. It's a tricky issue and I think every couple has to draw their own conclusions - there are plenty of examples where an involved donor without parental responsibility works out really well - there are numerous families in this situation here on MN. I lost my father at a very young age and as a consequence felt that it would be odd of me to deliberately choose a fatherless state for my child. But as I say, I think this decision is so emotional and so personal that I couldn't possibly pass judgement on anyone else's choice.

And, of course, you can't adopt if you want an involved donor/dad, because legally a child can only have two parents. The law has to catch up with this a bit. For us - maybe because I didn't have a dad - it felt very important to provide our child with a father, and we do have to live with the consequences of that.

I do feel despairing when lesbian and gay parents resort to the courts when things go sour, though. Of course that has to happen as a last resort, to protect the child's best interests. But it makes me very sad when we resort to a heterosexist legal system that doesn't recognise or understand our families. (Don't get me started on biological mothers who refuse access to non-bio mums...)

hester - I agree that the courts really aren't the appropriate place for these kinds of disputes, and surely it must be possible to allow 3 people rather than just 2 to have a recognised relationship with a child? I think we obviously have very similar views on this which cheers me up because most lesbian mums I know are extremely quite dubious about our setup and perhaps not as supportive as they might be about the potential stresses and strains.

Absolutely right. I sometimes find that lesbian mothers who have used clinics think what we've done is a bit - well, heteronormative, to use a term that suddenly seems very popular on MN. I do think having an involved donor/dad is complicated, risky, and very hard work - but I look at my dd's face light up when her dad arrives and I know we did the right thing for us.

just about to go and pick DD's dad up from the airport for his pre-xmas visit (she's 11 months and will be much more excited about this in years to come)

nothing heteronormative about it, surely - it's not like I have a relationship with him other than the one based around our child

Hope you have a wonderful first Christmas with your dd.

I'm Irish and while I could understand that the father in question should have the right to have access to his biological child, I did find it upsetting that the ruling was that the couple in question and their child were "not a family" although the High Court had previously ruled that they were. I think a move should now be made to change the constitution as they idea that a family can only constitute a man and a woman and their children is clearly outdated now and there are many, many loving families where this is not the set-up and they function perfectly well and should be recognised. Are the couple going to take the case to the European Courts?

BTW, I'm Irish but not gay, so tell me to feck off if I'm not wanted on the thread It does seem to me that even had the father agreed to one arrangement, that that could have been over-ridden by the courts even if he had simply changed his mind about how much access he wanted. That seems wrong to me. A CP Bill has been proposed but it will make no provision for adoption. That is probably twenty referendums down the line. We have to have a referendum to decide on every issue, dontcha know!

yay - - great discussion...thanks. Really interested in all these views - and rj the more people care about this the better - the number of gay people with children in Ireland wouldn't be enough to win a raffle ticket, let alone a referendum! Which is why the attention given to all this seems so outrageous to me - you're talking about something which fundamentally affects the lives of (well, I don't know cos there are no figures) about 600 families max, but has absolutely no impact on anyone else whether gay, straight, married, unmarried, whatever.

The 'not a family' comment was pretty wounding, but the judge who made it was simply stating the legal position as the Supreme COurt interprets the constitution, which of course doesn't actually define what a family is.

But if it doesn't define what a family is, how can it define what a family isn't??

rj well, precisely - it makes a historically and culturally based assumption about what the family is. The arguments are uncannily reminiscent of interpretations of the Bible - literal truth versus historically grounded contextualisation (although there of course, gay people are looking for the context based interpretation). It comes down to a question of intent on the part of the drafters of the constitution (not much ambiguity there I would have thought) and then to vaguer ideas about natural justice. I'm not a lawyer, though, so I'm probably talking out of my arse.

Oh right, so we're taking what a bunch of fusty old men in the 1920's intended as an interpretation of the family in the year 2009? They really should overhaul that thing at least every 10 years by rights!

utterly nuts, isn't it?

Hi - all. For the record, I am also Irish, not gay, but have adopted. Yeah I too was concerned about the fact that the judgement stated that the couple did not constitute a family, as defined in the constitution. But not surprised as our constitution (and associated family law) needs a lot of revision to reflect more diverse families. For example, in Ireland a single person can adopt, but an unmarried (heterosexual) couple can not. Gay couples may not marry yet in Ireland, although a Civil Partnership Bill is currently in progress. This though does not accord adoption rights to gay couples, so far as I know. I concur with other posters that recognising the child's rights to a relationship with the father is important - but why we cannot recognise this as well as recognising the couple as a family is beyond me. The two do not seem mutually exclusive.