A GAY friend of a lesbian couple who donated his sperm to one of them, resulting in the birth of a boy, has lost his landmark High Court bid for guardianship of the child.
Rejecting his claim yesterday, Mr Justice John Hedigan said the child's welfare was best served by remaining with the couple, and by the man in his forties having no guardianship or access to the infant.
There was nothing in Irish law to suggest that a family of two women and a child had "any lesser right to be recognised as a de facto family than a family composed of a man and woman unmarried to each other and a child".
The judge added that the rights of a man who acted as a sperm donor were no greater than those of an unmarried father. He had the right to apply to be appointed as a guardian, but no automatic right to appointment.
The child's welfare was the paramount consideration. Where there were factors negative to the child's welfare, the blood link was of little weight, he said. Where there were positive factors beneficial to the child, there might be rights inherent to the sperm donor.
Where a lesbian couple live together in a long-term committed relationship, they could be regarded as constituting a de facto family -- enjoying family rights under Article 8 of the European Convention on Human Rights (ECHR).
The judge believed there existed such personal ties between the couple and the child as to give rise to such rights, which do not conflict with Irish law.
The judge also stressed that the absence of any provisions in Irish law securing the rights of same sex couples under Article 8 of the ECHR "calls for urgent consideration" by the Dail.
A range of issues arose from this legal shortcoming including questions over access to fertility facilities, the rights and likely problems of the parties and succession rights.
"It is to be hoped that current consideration of the position of de facto families in Irish law may help to avoid, in the future, the emotional trauma to which the parties in this case have been subjected," said Justice Hedigan.
He found that, as the evidence established no relationship other than a biological one between the man and child, the man did not have family rights under Article 8 of the ECHR.
The child, almost two, lived in a "loving, secure, de facto family'' with the couple, who were joined in a civil union in England, had been together for 13 years, and were "excellent parents''.
A psychiatrist appointed by the court concluded that the man should not have rights which could interfere with the child's family life.
The judge said the evidence established there was a "poisonous" relationship between the man and the child's mother, an "arms length" relationship between him and her partner. The child had no opportunity to form an bond to the man, although the man had formed a bond with the child.
The baby's welfare was best served by remaining with the couple with no access by his biological father, he ruled.