LGBT families are coming into being and existing in a myriad of different ways, but our Government is delaying on commencing legislation that will protect them, says Anna Mac Carthy
Last month my partner gave birth to our first child, Finn. Like any new parents we’re overjoyed with our new little bundle and adjusting to the lack of sleep. When friends and family congratulate the two of us on the new arrival many think that all the legal protections are in place for Finn to be legally recognised as my child and I as her parent. Sadly this is not the case yet.
In the months before the landslide vote in favour of marriage equality an important piece of family law legislation was passed by the Oireachtas. The Children and Family Relationships Act would fundamentally change the family law of the State. This Act, combined with the successful children’s rights amendment to the Constitution, were intended to bring about a truly child-centred approach in our laws. While the Children and Family Relationships Act will provide much needed protections to many families, including LGBT families, some of these parental rights are not yet in place.
Due to its size the Act it has come into operation in parts, and the sections which deal with children conceived through assisted human reproduction have not yet been commenced by the Government. Commencement simply involves an order from the Minister to activate particular sections of the Act. The delays are apparently related to the need to set up various new registers. It has been over a year since the Act was passed and still the administrative procedures are not in place.
No Legal Relationship With My Daughter
The typical family scenario affected by these delays is similar to my own family. My partner and I were privileged enough to be able to afford to use the services of a fertility clinic. Being the non-biological parent, I have no legal relationship to my daughter. I am a legal stranger to her until the relevant sections of Act are commenced.
Once commenced those sections would allow me to become Finn’s full legal parent. There are many non-biological parents around the country who have been waiting for years in this position. Two measures have been suggested to me as a stop-gap while I await parentage. The first is to apply to court to become a guardian under the sections of the Act which have been commenced. However, according to the Act, I cannot apply to do this for another two years.
If we were a straight couple who had used fertility services in the same way that my partner and I had, I would already be recognised as Finn’s parent.
In addition, guardianship is a different legal status to parentage. It does not recognise the fact that I am Finn’s parent. My partner is not Finn’s only parent. I am her parent too. Finn doesn’t have one parent and one guardian, she has two parents. If we were a straight couple who had used fertility services in the same way that my partner and I had, I would already be recognised as Finn’s parent. This is not parity. Provision is made for equality for parents in the Act. The question remains why the government are delaying implementing it.
The second stop-gap which has been suggested is under the new Adoption Bill which was just published by the government. This Bill, once passed through the Oireachtas, would allow for me to apply to adopt Finn, but this can be a lengthy process which would unnecessarily take up the resources of the Adoption Agency in a nonsensical and intrusive assessment of whether I am suitable to adopt my own child.
Granting me parentage in relation Finn is already provided for in the Children and Family Relationships Act. The Government just need to implement it. It would be a simple process taking less than a couple of weeks. In the meantime Finn will potentially be denied legal rights her second parent for two years. This is not a child-centred approach.
Some Families Are Not Protected by The Legislation
Apart from the scenarios that will be catered for with the commencement of this legislation there are still a number of families that will not be protected, or will not be adequately protected by this legislation. The final text of the Act treats children who are conceived through a fertility clinic differently to those who are conceived outside of a clinical setting.
The Act, rightly I believe, contains a prohibition on the use of anonymous sperm donors. This prohibition is in line with the right of children to have access to information related to their biological identity, should they wish. However, the difficulty with this provision is that currently anonymous donors make up approximately 70 percent of sperm donors that are available to Irish clinics. Most donations are supplied via US or Denmark based sperm banks. The remaining 30 percent are non-anonymous donors. These are usually donors whose identity will only be known should the child wish to access that information when they are 18.
The Act effectively removes approximately 70 percent of potential donors from circulation. The removal of 70 pecent of donors means that, based on the principle of supply and demand, the price of the remaining 30 percent could effectively treble. This increase in price would prevent many people from becoming parents.
In effect our families are still not recognised for what they are and the realities in which they exist.
Intending parents who are priced out of the market for clinical assistance may be forced into DIY reproductive situations with friends. Children conceived in such circumstances will not be adequately protected by this legislation and will face continued legal uncertainty. Such children may have to wait up to two years before their non-biological parent can be recognised in law, and even then such parents can only be recognised as court appointed guardians, which, as mentioned above, is a different legal status to parentage. For instance the child will have no automatic entitlement to inherit from a former guardian upon their death, while they would from a parent. In effect our families are still not recognised for what they are and the realities in which they exist.
Former Minister Alan Shatter’s initial drafts of the Act made provision for such situations and treated all children conceived through assisted reproduction equally. I understand based on feedback from the Department of Justice that the difference in treatment now under the Act is an effort to discourage people from entering into DIY situations.
The thinking behind this is unclear especially given that earlier versions of the Act made provision for this. If fertility services are too expensive for people to access they will inevitably create families in their own way, as many people did in the past, before fertility clinics would accept LGBT clients.
Penalising the children of these families for the circumstances of their origins seems dreadfully unfair. I hope to be proven wrong but there also seems to be a fear on the part of the Department to legally recognise family situations where there are more than two parents. Queer families are made up of all sorts of situations and forcing a template onto them is not in the best interests of the children involved, specially when it creates more legal uncertainty for these children. It is more difficult for parents to avail of legal protections if their child has not been conceived using the services of a clinic, and this should not be the case.
Pacifying Right-Wing Lobby Groups
Shatter’s earlier versions of the Act addressed surrogacy for the first time under our laws. Despite the gap in the law many people already brave the legal limbo that can result from such arrangements. Shatter’s proposal of banning commercial surrogacy was a welcome approach and one in line with the UK framework, which allows friends and family members to act as surrogates but prohibits commercial surrogacy in an attempt to prevent the economic exploitation of women in developing countries. Delaying dealing with these issues seems to be an attempt to pacify right-wing lobby groups, but the government can’t hide from the need to regulated the assisted reproduction sector and also surrogacy.
The government can’t hide from the need to regulated the assisted reproduction sector and also surrogacy.
LGBT families are coming into being and existing in a myriad of different ways. Commencing this legislation is an important step in protecting many of our children and families and the delays are becoming unacceptable. The previous government made a lot of political capital from the introduction of this legislation and the passing of the marriage equality referendum. Protections for LGBT families are still not in place and the government should be pressed as to why. We must also ensure that those families who fall outside of the legislation are afforded recognition, and that becoming a parent in the first place is not beyond reach.
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