Ahead of the birth of her fourth child, Maeve Delargy highlights how same-sex parents and their children are still not equal under Irish law.

I’m pregnant and I’m already planning my trip to Belfast.

It’s not because I don’t think the maternity services in the Republic are good enough. I have been taken care of by Holles Street for one pregnancy already, and my wife for two. I’m planning to give birth in Belfast to get a birth certificate or, more specifically, a birth certificate with my name and my wife’s name on it. A birth certificate that reflects the reality of our family.

My mum questions whether the hassle of transferring my care to a hospital in Belfast and giving birth there is worth it, and perhaps she’s right. Having a Northern Irish birth certificate with both of our names on it doesn’t actually mean we are both recognised as parents in the Republic. Like our other children, this child will only have one legal parent – whichever one of us gave birth. The other parent will be a legal stranger to them until, when the child turns two, that parent applies to be a guardian.

But, notwithstanding the massive logistical nightmare that uprooting and heading to Belfast with three young children for an indeterminate amount of time is going to be, we still think it’s worth doing. What the birth certificate means to us and, we think, will mean to our children in the future, makes all the planning worthwhile.

It also means that, in case anyone changes their mind, there is at least one jurisdiction where the legal rights and responsibilities of our friend, as the donor, and of us, as the parents, are respected and would be upheld in a court.

So why can’t we just give birth in Ireland and have both our names on the birth certificate here? Didn’t the law change in 2020? On May 4, 2020, sections 2 and 3 of the Children and Family Relationships Act 2015 were finally commenced. This changed the law to allow some same-sex female couples to have both their names on the birth certificate going forward. However, strict rules have to be followed including: The baby has to be conceived in Ireland; The baby has to be born in Ireland; and The baby has to be conceived in a fertility clinic.

While known donors, i.e. someone known to the couple, can now be used, finding a fertility clinic in Ireland to provide this service is difficult.

But why wasn’t all that fixed in the Health (Assisted Human Reproduction) Bill 2023?

On June 26, 2024, the AHR Bill passed in the Seanad. While advocacy groups (Equality for Children, Irish Gay Dads and LGBT Ireland) had hoped based on promises made by Minister Stephen Donnelly that provisions would be introduced at Report Stage to rectify these gaps, that did not occur. Instead, Minister Donnelly announced that in order to ensure the AHR Bill passed before the Dáil rises, new amending legislation would instead be brought forward in September to address these issues.

When the AHR Bill was debated in the Seanad on June 13, 2024, the Minister indicated that “This amending Bill will, among other things and subject to further consultation with the Office of the Attorney General, provide clarity for Irish residents undertaking donor-assisted procedures abroad to obtain a declaration of parentage and for Irish citizens domiciled abroad who have undergone surrogacy or donor-assisted human reproduction abroad to have their parentage recognised where it is not already.” Therefore, the amending legislation will hopefully address issues one and two above.

As regards issue three, the AHR Bill will ensure that any children conceived prior to May 4, 2020, outside of a clinical setting (i.e. via ‘at home’ or ‘non-clinical’ insemination) will be able to get a new birth certificate with both of their parents listed on it. This is a huge achievement for the advocacy groups who have been campaigning on this issue for years and the work of all those prior to that. It is a big change that will have a massive impact on lesbian-headed families in Ireland.

However, the advocacy groups have been told that children conceived outside a clinic after May 4, 2020, will not be included. This is despite a robust legal solution being drafted for the government. This solution was included in a Private Members Bill (PMB) brought forward by Labour which was debated before the Dáil last year. Unfortunately, the government decided to postpone this PMB for nine months precisely because, as Minister Donnelly said in the Dáil at the time, these issues “are the focus of changes I am making to the Children and Family Relationships Act 2015, which I am introducing by way of Committee and Report Stage amendments…”. As described above, in the end, these Report Stage amendments never happened.

 

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What does that mean for my family?

Well, for multiple reasons, including that we did not need expensive and invasive medical treatment, we chose to conceive our children without the help of a fertility clinic. We do have one child who was conceived prior to May 2020, so if the government include children conceived and born outside Ireland, then I will be able to withdraw my application to adopt her and can apply for a declaration that I am her parent.

But, for our other two children, and the one coming next, nothing will change. They were all conceived post-May 4, 2020, and outside of a fertility clinic. So, unlike their oldest sister, they will only have one parent in the eyes of the Irish law.

This will create inequality within our family and reflects the inequality that many same-sex parents and their children suffer under the current Irish law and the AHR Bill, as finalised. We hope that when the supplementary bill is brought forward in the autumn, this will be inclusive of all LGBTQ+ families and ensure we live in an Ireland where all children are treated equally.

 

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