DUBLIN — The Irish Supreme Court ruled Thursday that a gay man who donated his sperm to a lesbian couple should be permitted to see his 3-year-old son regularly — in part because Ireland's constitution doesn't recognize the lesbians as a valid family unit.
The ruling was a legal first in Ireland, where homosexuality was outlawed until 1993 and gay couples are denied many rights given to married couples. Critics contend the case highlights how Ireland's conservative Catholic 1937 constitution conflicts with contemporary European norms and fails to address the reality that hundreds of gay couples in Ireland have children.
In their unanimous decision, the five judges of Ireland's ultimate constitutional authority said a lower court erred by trying to apply the European Convention on Human Rights in favor of the lesbian couple. The Supreme Court concluded that when the two are in conflict, the Irish constitution is superior to European human rights law.
In her written judgment, Supreme Court Justice Susan Denham said the lesbian couple provide a loving, stable home for their son — but that the constitution defines parents as a married man and woman, and gays are not permitted to marry in Ireland.
She said Irish law does identify the sperm donor as the father, and he therefore had a right to have a relationship with his son.
"There is benefit to a child, in general, to have the society of his father," Denham wrote. "I am satisfied that the learned High Court judge gave insufficient weight to this factor."
What had the High Court ruled? Read on:
In April 2008, High Court Justice John Hedigan ruled in favor of the lesbian couple and rejected the man's application to have visitation or guardianship rights. The man immediately appealed.
In his ruling, Hedigan said Irish law contained nothing explicit to suggest that two women and a child possessed "any lesser right to be recognized as a de-facto family than a family composed of a man and woman unmarried to each other and a child."
Hedigan said the European rights charter's Article 8 did not discriminate between heterosexuals and gays in enshrining their right to a private family life.
So even though the gay man was clearly the child's biological father, Justice Hedigan had ruled that the two woman and the child were a "de-facto" family and that the father therefore had no more right to his own son than a stranger, in effect.
The case the Supreme Court let stand was that of a lesbian couple who shared a child and eventually split. The child was carried via artificial insemination by one woman but shared no blood connection to the other. However, both women acted as parents for the full seven years of this child's life. Did one parent have more rights over the child than the other simply because of shared genes? The court said no. Both parents share parental rights and therefore have equal right to pursue shared parental rights upon their split. Although one parent was biologically linked to the child, the other acted as a 'de facto' parent for the entirety of the child's life.
As a threat, then, to the biological family and to parental rights, the concept of the "de facto" parent has been around for a few years. But with the growing push for gay marriage and the reality that many gay couples are raising children together to which only one may be biologically linked, this situation has the potential to weaken the connection between a child and his or her own biological parents, and to strengthen the notion that a "family" is whatever we decide it is, whenever we make the decision.
The Irish Supreme Court should be recognized for its defense of the notion that a child's parents are not whomever we say they are, but the people who are biologically connected to him (except in the case of adoption, where the biological parents have relinquished their rights). But I think that it won't be long before gay couples, not only in Ireland but everywhere, insist on the "de facto" parenthood definition being accepted as the meaning of the word "parent," and the dropping of the definition of parent as a person who is biologically a child's father or mother. In other words, the definition of "marriage" isn't the only definition they're bent on changing.