Family & Life

A Father is a Father, Even If He Is a Sperm Donor – Supreme Court : 17th Dec 09

A Father is a Father, Even If He Is a Sperm Donor – Supreme Court

The Irish Supreme Court has ruled that a sperm donor should have access to his child who is being raised by his mother and her lesbian partner. In a landmark decision, a five-judge division of the court unanimously allowed part of the appeal by the man against a High Court decision which had refused him both guardianship of and access to the now three-year-old boy. Lawyers for the man, who was in court, said he was “very happy” with the outcome.

The court stressed that the basic and paramount issue in the case was the welfare of the child and it also found that Justice John Hedigan in the High Court had erred in finding that the European Convention of Human Rights (ECHR) has a bearing on the case.

The Chief Justice, Mr Justice John Murray, said the High Court had no jurisdiction to apply Article 8 of the ECHR, which provides for a right to family life, to the status of the lesbian couple and the child.

In dismissing the man’s case in the High Court, Mr Justice Hedigan had ruled there was nothing in Irish law to suggest a family of two women and a child “has any lesser right to be recognised as a de facto family than a family composed of a man and woman unmarried to each other and a child”.

In her judgment, Mrs Justice Susan Denham said the lesbian couple and the child are not a family under the Constitution of Ireland and therefore their relationship may not be weighed as such in the balance against the father of the child. There was also no institution of a “de facto family” in Irish law and Justice Hedigan had erred in his analysis of this. She also found the High Court judge erred in applying the European Convention of Human Rights to the case and in his claim that the lesbian couple had rights under Article 8 of the Convention.

While the fact that the man is the biological father of the child was not a determinative factor in the case, it was, nevertheless, an important factor and the High Court judge had given insufficient weight to it, she added. Nor had he given sufficient weight to the fact that there is generally benefit to a child to have the society of his father. The father, even as a sperm donor, has rights as a natural father as provided for in the Guardianship of Infants Act to apply to be appointed guardian of the child, she said. It was for the court to decide what was in the best interest of the child.

The basic issue was the child’s welfare and a fact-based analysis of all the circumstances of the case was required, she said. The child’s welfare being paramount, she was satisfied in all the circumstances of this case there should be no order for guardianship made in relation to the father at this time.

“As in all family law matters, issues may be re-addressed in changed circumstances,” she added. She said she would also make an order enabling access by the father to the child as this was in the best interests of the child. She hoped the parties could agree on how access would be carried out but, if not, the matter would be determined by the High Court.

Following the ruling, the Constitutional gold standard - the family based on marriage between man and woman - reigns supreme. The Supreme Court has categorically rejected the notion that there is a legally recognised institution of a de facto family in Ireland.

Chief Justice Murray analysed the status of the European Convention on Human Rights in Irish law and concluded that it is not directly applicable here. Because of the narrow way in which the Convention was introduced in Irish law, Irish courts can - in principle - ignore it. At best, it is an interpretative tool: its value persuasive only at a purely economic, political or moral level.

This important statement of Ireland’s relationship with the European Convention may ultimately prove to be the most groundbreaking aspect of the sperm donor saga. The Irish Times. December 10. The Irish Independent. December 11.

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Family & Life

A Father is a Father, Even If He Is a Sperm Donor – Supreme Court : 17th Dec 09

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