Saturday 20 July 2019

Constitution holds sway in definition of the family unit

Yesterday's ruling means that men who donate their sperm can not sign away their paternity with the stroke of a pen.

Lesbians and other recipients of donor sperm can not rely on pre-existing contracts that say the birth father has little or no role in their children's lives.

Men's biology and parenthood matters and, as a result of the unanimous Supreme Court ruling, sperm donors have the status of a natural father.

This means they have the same status as any unmarried father.

This is not a lot.

Due to yesterday's ruling, sperm donors can petition the courts for access to their child and for guardianship, but they are guaranteed neither.

The ruling is hugely significant as it stresses, as the Supreme Court did in the Baby Ann adoption saga, the importance of a natural father's blood link to his offspring.

The ruling also reinforces that the welfare of a child embroiled in legal proceedings is paramount.

Apart from this, little has changed.

Following the ruling, the Constitutional gold standard -- the family based on marriage between man and woman -- reigns supreme.

The Supreme Court has categorically rejected the notion that there is an institution of a de facto family in Ireland.

Though it looks like a family and acts like a family, it is not a family -- constitutionally at any rate -- in the eyes of the State.

Although this comes as no surprise to anyone well versed in the court's jurisprudence, the force of this ruling will disappoint many thousands of people including heterosexual, gay and other non-marital family units living with their children in loving and stable settings.

In the High Court leg of the sperm donor case, Judge John Hedigan, who served for almost a decade as a judge on the European Court of Human Rights, found that the lesbians and the child were a "de facto family" and held such rights that may arise under Article 8 of the Convention.

This interpretation raised the possibility of expanding upon the restrictive Irish definition of the family, one that might concentrate on the substance of a family, not its constitutional form.

But the Supreme Court gave short shrift to Judge Hedigan's novel approach for two distinct but significant reasons.

After stating that there is no such thing as a de facto family, Mrs Justice Susan Denham, the liberal light on the court, said the lesbian couple and the child are not a family under the Constitution of Ireland and therefore their relationship may not be weighed as such in the balance against the father of the child.

And the court en masse and Chief Justice John Murray in particular, demolished Judge Hedigan's attempt to give direct effect to the European Convention of Human Rights.

Ireland is a signatory to the Convention and many, including the three women who challenged Ireland's restrictive abortion regime in Strasbourg this week, hoped that citizens here could benefit from that court's expansive and often liberal interpretations of rights -- including its ever generous pronouncements on the family.

But Judge Murray analysed the status of the Convention in Irish law and concluded that it is not directly applicable here.

Because of the narrow way in which the Convention was introduced in Irish law, Irish courts can -- in principle -- ignore it.

At best, it is an interpretative tool: its value persuasive only at a purely economic, political or moral level.

This important statement of Ireland's relationship with the European Convention may ultimately prove to be the most groundbreaking aspect of the sperm donor saga.

Irish Independent

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