Unequal Parenthood: Ireland’s Legal Gap for Male Same-Sex Couples
By Anna-Katharina Priesterath, Editor-In-Chief
It has been a decade since Marriage Equality was introduced in Ireland, allowing same-sex couples to get married. In the Irish Constitution it says that this act should “apply to marriage between two persons of the same sex as it applies to marriage between two persons of the opposite sex.” (source: Marriage Act 2015, Section 5)
While this has been a milestone achieved by the LGBTQ+ community, it is crucial to acknowledge ongoing legal battles same-sex male couples are facing in terms of legal rights connected to parenthood. As of now, only some children born through assisted and donor reproduction to LGBTQ+ families in Ireland can be legally connected to both of their female parents—those conceived using Irish clinics and donors. The law doesn’t cover couples who used clinics or donors abroad since 2020, creating unequal recognition within families. (source: Same-sex female co-parents win new legal recognition | Irish Legal News). Children of male same-sex couples cannot be legally connected to both of their male parents.
Dr. Louise Crowley, UCC
I asked Dr. Louise Crowley, who is a solicitor and Professor in Family Law at the School of Law at University College Cork, about the reasoning that is holding back legal recognition for families formed through surrogacy.
Dr. Louise Crowley said, “In 2022, the revised Health (Assisted Human Reproduction) Bill was presented to Dáil Eireann. The 2022 Bill permits only gestational surrogacy, provides that the surrogacy must be domestic and non-commercial, and thus does not provide for international surrogacy. In addition, the Bill sets out age requirements for both the surrogate and intending parents and prohibits commercial surrogacy. It has been subject to much criticism including its failure to provide for retrospective recognition of family relationships arising from domestic surrogacy arrangements which took place prior to the enactment of the Bill. This Bill has not been amended despite a range of criticisms and recommendations by the Joint Oireachtas Committee on International Surrogacy. It is hoped that the legislature will amend the Bill to reflect the new and emerging family forms in Ireland, however Ireland has repeatedly proven itself slow to develop effective laws in this area, and it is expected that there will be a considerable delay in progressing this legislation.
The superior legal position held by same sex women couples in respective parentage and guardianship of the child arises from the biology of childbearing, meaning that where one of the couple bears the child, by law she is automatically the child’s sole guardian and custodian. If marriage equality was truly equal the legal framework would be in place so that the necessary processes were in site to ensure that the child of any same sex couple should be their child in law.”
Changing and reforming legal frameworks is a long lasting and often difficult process. Undeniably, this cause is long overdue. Legal protection and security are important factors when discussing this issue. Children of gay couples are experiencing disadvantages in the areas of healthcare, education, travel, and legal matters because only legal parents can make decisions on their behalf. Not only are fundamental rights, such as inheritance rights at question, but the emotional aspect of this matter is important. By not allowing both gay parents to have legal connections to their children they are othered. This can lead to children feeling invalidated and unequal. The Marriage Act, 2015 was one step away from othering and closer to unity and equality. However, it is crucial to recognize this legal gap and act accordingly. By denying gay parents legal rights to parenthood the state is denying them fundamental equality rights.
You can find out more about the ongoing campaign here: Make Marriage Equality A Reality - 10 Years On | MyUplift
