State Has Yet To Fully Protect Families Led By Same-Sex Parents

The Children and Family Relationships Act 2015 still does not cover all families led by same-sex parents.

A group of same-sex families and their children protesting outside Leinster house for the state failing to fully protect them

Four years on from marriage equality, the state has yet to fully protect same-sex parents and their children.

In May 2015, streets in Ireland were plastered with posters for the upcoming referendum on civil marriage equality. ‘Every child deserves a mother and a father’ read many of the posters erected by the ‘No’ campaign.

These slogans were judgemental. They hurt lesbian and gay mothers and fathers. They caused anger amongst children of lone parents and lone parent families. They were harmful to LGBTQI young people. These slogans were a cynical attempt to suggest that because you were lesbian or gay, you could never provide the fullness of life experience for a child, and therefore, you did not deserve the right to marry.

Presenting the idea of a perfect, model and traditional family unit was a tactic designed to swing the conversation away from the simple extension of rights to your colleague or friend. But on May 24, 2015, the people’s vote re-affirmed yet again that there is no single proposition for family in Ireland – only diversity.

The passing of the Children and Family Relationships Act six weeks earlier played no small role in overcoming the arguments of the ‘No’ campaign. The significance of that 2015 Act is largely understated.

Families, headed up by same-sex parents were nothing new. However, the decision to finally extend legal recognition to same-sex parents in advance of the referendum served to remove children from the debate.

Four years on, Irish people remain proud of what we achieved on that day in May. It was a watershed moment for many and facilitated further progressive, national conversations. For many in my community, it re-defined what it meant to be Irish.

The Marriage Act 2015 was quickly enacted and the political and media agenda moved on. But Government still had a job to do. And four years on, remarkably, simple unfinished business remains. It’s no surprise to hear people ask, “sure isn’t that all sorted now?”

People have a reasonable expectation that following a referendum campaign and a constitutional amendment, that relevant obstacles would also be removed.

But the State failed to finish the job. Loose ends remain and same-sex couples and their children are not yet equal before the law.

The legislation that played such a key role in the campaign – the Children and Family Relationships Act 2015 – was poorly drafted prior to the referendum – to the point that key parts of this legislation still remain without commencement, four years on. The aspects of the legislation dealing with adoption were finally addressed in the Adoption (Amendment) Act2017.

However, for those who have conceived through clinical insemination, only the birth mother has any legal relationship to her child. The birth mother in these cases must sign a legal affidavit that they are the child’s only parent should they wish to be registered. The non-biological mother has no legal relationship with their child. The non-biological mother is as much as a stranger under Irish law, with no right to give medical consent for their child and no custody rights should their relationship with the birth mother break down. The child also has no automatic right to their estate should the non-biological mother pass away without a will.

These realities are a cause for anxiety amongst thousands of same-sex parents every day and have resulted in real and chilling events where parents cannot be parents in emergencies. The Government have responded too slowly to this.

On six separate occasions the Department of Health have missed their own set deadlines to commence parts 2 and 3 – which they are responsible for. Four years on, the Department of Employment and Social Protection is still identifying typos in part 9 of the legislation. It was originally envisioned that these parts would be commenced after one year.

Those that rely on methods of conception that were outside of clinical insemination such as surrogacy or through private methods will have to wait for rights in the Assisted Human Reproduction bill, which is also moving slowly.

Legislative anomalies can often go unnoticed because of common identifiers that have been used for decades – traditional terminology that is no longer inclusive or fit for purpose.

For example:

  • Legislation only allows for mothers to avail of adoptive leave, therefore, two men who adopt do not have shared or equal adoptive leave.
  • A woman whose wife has conceived through assisted human reproduction cannot apply for an Irish passport for her child because the law requires a stated ‘mother’ and ‘father’, even if they are recognised in their country of residence as a mother.
  • A similar situation applies for fathers who conceive through surrogacy.
  • Civil registration law still requires the names of a ‘mother’ and a ‘father’.

Many of the intricacies in the law post-marriage equality have never been updated and the knock on effect is always a denial of rights and a failure to fully protect.

Many of the politicians that stood on the stage at Dublin Castle in May 2015, or who took on the ‘No’ campaign in the weeks previous, dropped the ball and never finished the job. You would rarely get away with missed deadlines or failing to complete a task in any other job.

Complacency has followed the referendum. And that complacency reverberates through Government. The collective celebration and sigh of relief of those who voted ‘Yes’ should never have been interpreted as the final job of work by those in decision making positions.

“Sure isn’t that all sorted now?”

No, it’s not.

© 2019 GCN (Gay Community News). All rights reserved.

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