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Opinion 'We still don't have crucial parental rights for same-sex married couples'

The State has a duty to protect all married couples, including same-sex couples, writes Dr Brian Tobin.

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.

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