We need your help now
Support from readers like you keeps The Journal open.
You are visiting us because we have something you value. Independent, unbiased news that tells the truth. Advertising revenue goes some way to support our mission, but this year it has not been enough.
If you've seen value in our reporting, please contribute what you can, so we can continue to produce accurate and meaningful journalism. For everyone who needs it.
Sign in. It’s quick, free and it’s up to you.
An account is an optional way to support the work we do. Find out more.
By continuing, you are indicating that you accept our Terms of Service and Privacy Policy.
MONDAY THE 22nd of May marked the second anniversary of the Marriage Equality Referendum, a resounding success that brought about a change in the Constitution and opened up civil marriage to same-sex couples.
Although the success of the referendum made Ireland the first country in the world to legalise same-sex marriage via a popular vote, many provisions of the Children and Family Relationships Act 2015, designed to provide same-sex couples with parental rights, are still not in force.
The 2015 Act was signed into law by the President merely six weeks before the referendum, and it is the first piece of legislation designed to regulate parentage where a child is born to a couple via donor-assisted human reproduction.
Following the signing into law of the 2015 Act and the success of the Marriage Equality Referendum shortly thereafter, numerous lesbian couples began to plan for two important things, marriage and children.
Same-sex spouse not recognised as legal parent
The successful referendum result meant legislation allowing for same-sex marriage would follow, which it did in November 2015, so many lesbian couples not only began to plan their weddings. They also commenced the process of conceiving a child via donor insemination in Irish fertility clinics, believing that once the child was born they would both be able to be legally recognised as its married parents by virtue of the provisions in the 2015 Act.
However, sections 20 to 23 of the Children and Family Relationships Act 2015 have still not been commenced, meaning that a donor-conceived child’s mother cannot have her same-sex spouse recognised as a legal parent of the child. The Fine Gael/Labour coalition and the current Fine Gael-led minority government have both failed to commence these crucial, family-oriented, child-centred provisions of the 2015 Act.
In May 2016 a Department of Justice spokesperson confirmed that these sections had not been commenced and that this was a matter for the then Minister for Health. The department official believed that the necessary preparatory work was in progress, but it is now over a year later and no identifiable progress appears to have been made to date.
The State has a duty to protect all married families
Lesbian married couples cannot procreate without the assistance of a sperm donor so the commencement of the legislation is essential to enable the spouse who does not give birth to establish her parental rights in respect of the child. Indeed, the State has a duty to protect all married families under Article 41 of the Constitution.
Further, the 2015 Act was supposed to open up joint adoption to same-sex civil partners and cohabiting couples, but this part of the legislation has not been commenced either. However, it appears that these adoption provisions have now been brought forward into section 16 of the Adoption (Amendment) Bill 2016, though that Bill has yet to become law.
Finally, the State has yet to regulate surrogacy, the only means by which a male same-sex married couple can procreate with assistance. In November 2016 the Department of Health confirmed that drafting of a surrogacy Bill was at an advanced stage and was expected to be published by the end of the first quarter of 2017. It has yet to appear and indications from the Department of Health regarding the Bill’s approach to surrogacy are cause for concern.
The policy behind the Bill appears to be based on a complete misunderstanding of the upshot of a 2014 Supreme Court decision on surrogacy. It seems that the Bill will also be incorporating some of the most criticised, outdated and controversial aspects of surrogacy laws in the UK and elsewhere.
Plus, even if it is eventually introduced, such a Bill could face much opposition on its path to fruition given that in 2013 a nationally representative sample survey carried out by the Royal College of Surgeons found that only 52% of those surveyed were in favour of surrogacy.
Marriage equality may be a reality in modern Ireland for almost two years now, but unfortunately many crucial parental rights for same-sex married couples remain on the distant horizon.
Dr Brian Tobin is a lecturer at the School of Law, NUI Galway. He researches in the areas of family law and children’s rights and in 2014 he provided expert opinion to the Oireachtas Joint Committee on Justice and Equality on the General Scheme of the Children and Family Relationships Bill. He has published widely in the areas of family and child law and sexuality and the law.
To embed this post, copy the code below on your site
We still don’t have crucial parental rights for opposite sex married couples either by the way.
@Niall O D: good point.when there’s no platform to build on,you just can’t build!!!
@Niall O D: that also seems to be the case in terms of third party donations. On a pragmatic level, is there any legal issue with just writing the “non-bio” parents name down on the birth cert? Apart from having to price you’re Irish, would the only blocker to this be the opinion/belief of the registration official that issues it?
@Niall O D: Very true, we should all be putting pressure on the government to bring in laws for adequate paternal leave (see Finland for example), and get our sh*t together with affordable state childcare.
@Niall O D: very good point here
Welcome to the world of equality.
There is nothing discriminatory in this. Take the case of a married heterosexual couple. If the woman decides to become impregnated by the guy down the road, her husband will never be recognised as the father, simply because he isn’t.
We can’t rewrite the rules of biology to suit same sex couples.
I have a lesbian cousin and she talks about their plans to have a baby.
The reality is they can never have a baby. Only one of them can and the other takes on the role of pretend mum.
Welcome to the world of equality.
@Tom Burke: Gonna guess you feel the same about heterosexual couples who adopt? World’s gone mad isn’t it, when children have loving and stable homes!
@Tom Burke: “pretend mum”.
Are adoptive parents “pretend” parents too?
@Tom Burke: Being a parent is a lot more than just impregnating someone or giving birth!
@Rui Firmino: To that note, it’s alot more than just having a right to. We all have the right to shelter and food, but that doesn’t mean I can live in The Shelbourne and live off room service for free.
@Dilly Phun: Not sure what point you’re trying to make there!
As an adoptive parent I can tell you that quite often we are “pretend parents” as the birth parents and their genes are always there
@Tom Burke: That’s incorrect. In Ireland, like most countries, when a child is born to a married heterosexual couple, the husband is presumed to be the father without any kind of evidence. It would take the husband or wife objecting to the husband’s name on the birth certificate before it would be questioned. I’m going to go ahead and assume most heterosexuals aren’t questioned in the slightest when they say whose name is going on the birth cert as “father”. In fact, I’d be very surprised if they’re questioned even when there is evidence that the child is not biologically the husband’s, like in the case of donor-assisted IVF. Do you think we should have paternity tests across the board? To be genetically accurate, like?
2015: The SSM referendum is nothing to do with gay couples adopting children. Get with the program, you bigot.
2017: Why is adoption for gay couples not properly provided for? We had a referendum and everything.
@Ben McArthur: the SSM referendum didn’t have anything to do with gay couples adopting children, that was handled before the referendum when the Children and Family Relationships Act 2015 was signed into law.
Maybe read something properly and actually understand it before wah wah wahing
With many crucial parenting rights not yet in place for same sex couples, what does this mean if the couple splits or divorces? Does the non-biological parent here still have rights to custody? Seems to me like this all should have been ironed out. Typical Ireland: fire, ready, aim.
@Rosie Murray: If they have formally adopted the child then yes they do, if they didn’t, they don’t.
Lot of red tape, but in the event of the death of the biological parent it’s worth it.
We don’t have custody by default.
@Rosie Murray: They need to give single father’s equal rights first before anything !!
@Scorpionvenomm: well said there, far more important.
@Scorpionvenomm: exactly. There is a queue get in line and wait your turn people.
Same-sex couples had adoption rights before the marriage referendum, which was putting the cart before the horse IMO. We are using babies as guinea pigs – societal pioneers. This will not turn out well as children will always find other kids with two mammies and no daddy or vice versa weird.
@Brendan Moriarty: children will only think something is weird if their parents/teacher/society tells them.
My youngest attends a school with 5/6 children from SSMs in the same year as her and thinks nothing weird about them…
Plus there are many families with just one parent, nothing weird about them either…
@Brendan Moriarty: You’re the one who’s weird. Children don’t care about that!
@Brendan Moriarty: Well lucky for you they have actually done studies on children of same sex couples and haven’t found them any worse off then other children. One negative that they did find is actually the one that you mention at the end. That is that they were more likely to be bullied because of their parents, but this is really more a failure of the parents of the bully, rather than of the bullied child. I always find it crazy that there are so many people that object to same sex couples adopting together but I have never heard of anybody complain about a singe person adopting and it has been going on for much longer. I really can’t wrap my head around that one.
@Brendan Moriarty: Well your kids clearly will as you’ll be bringing them up in a bigoted household.
@CeannairBlue: ah, the magic word again. ‘Bigot’ has been deployed, folks. Discussion over. Except SSM couples who become parents are by definition depriving their kids of a mother or a father. I’m old enough to remember when this (or at least the mother part) was considered a terrible thing.
So what happens if the child needs surgery? The Non bio parent couldn’t give consent ? What if the bio parent has been killed or in a coma ? Surely there are really serious ramifications of this ridiculous stalling of the last two governments on these issues.
@Catherine Sims: exactly. This legislation should have been written before the same sex marriage as now the non-bio parents are not protected (imagine the donor, egg or sperm turns up after years and demands custody). This isn’t fair in the child or parents. Of course this was also the case before same sex marriage but we’re going to see a lot more of it now.
Heterosexual Couples suffering infertility face the same battles to create a family. We are one of the only countries in Europe that do not offer financial support for IVF. Adoption is practically impossible and surrogacy is not legislated for making it fraught with difficulties.
Even normal married couple don’t have equall parental right. Join the club.
Slippery slope
Persisting with your demands for “same sex rights “shows no regard for the rights of children, who when interviewed , all stated that they would prefer a man and woman to be mother and father. This pursuit of “same sex rights” to promote a homosexual agenda will be met by fierce resistance when the minority liberal agenda is imposed on the silent majority. Has history taught ye nothing. Every radicalised Islamist refers to the west’s moral decline through gay marriage. If you wish to inspire and radicalise the next generation of terrorists , do continue with this agenda. The backlash against the LGBT politicos has begun in Russia, Ukraine, Chechnya, and by the way , the world majority . Be careful with your gay propaganda, it will always cause someone else to pay the ultimate price
In this country you can only be considered a family if there is a marriage in place. Families where there is no marriage contract do not have the constitutional protection and recognition of the state. Nothing equal in that at all.
have your say