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Court denies sperm donor paternal rights in favour of lesbian parents

21 April 2008
Appeared in BioNews 454

Last Wednesday the Dublin High Court, Ireland denied a sperm donor guardianship and court-ordered access rights to his biological child, born to a lesbian couple. The homosexual 41-year-old friend of the lesbian couple, referred to as 'A', signed a written agreement to donate sperm and not to assume a father role but would instead be known as a 'favourite uncle' with access to the child subject to the discretion of the couple. Justice John Hedigan called for the 'urgent consideration' of passing legislation that would extend the aegis of Article 8 of the European Convention of Human Rights, the right to establish a family and private life, to same-sex couples under Irish law.

Hedigan held that long-term, committed lesbian relationships do enjoy family rights under Article 8. He could not find any indication in Irish law that a family of two women and a child has 'any lesser right to be recognised as a de facto family' than a family of an unmarried man and woman with a child. He equated the sperm donor father's rights to those of an unmarried father, who may seek Court approval for custody subject to what it determines is in the child's best interests.

When the child was born in May 2006, 'A' actively began assuming a father role despite his agreement. The relationship with the couple deteriorated and he secured an injunction to prevent their travel plans pending the legal proceedings.

Upon evaluation, Judge Hedigan held that A's mere biological connection to the child does not attract Article 8 family rights. He accepted, on balance, the court-appointed psychiatrist's opinion that granting paternal rights would negatively disrupt the child's 'loving, secure, de facto family'. He found that 'A' had deceived the couple about his true intentions for sperm donation and the child, now almost two years old, is best to remain in the 'excellent' parental care of the couple, who were joined in a civil partnership in England after 13 years together.

The Unmarried and Separated Fathers of Ireland view the decision as potentially detrimental to fathers' rights and believe it demonstrates why a constitutional amendment is required to protect paternal equality. A Catholic lobby group labelled the decision 'anti-child' and 'anti-father'. Critics of the judgement blamed the Government for being too 'paralysed' by fear of controversy to enact the necessary laws that most European nations already have. Some interest groups called for legislation to mirror the UK's current approach which requires clinics take account of the 'need for a father' when assessing access to treatment. Civil liberty groups disagreed and argued it illustrates a need to legally recognise same-sex families.

Lesbian custody case has wider implications
The Sunday Business Post |  20 April 2008
Sperm donor loses baby battle |  17 April 2008
Sperm donor loses bid for access to son
RTE News |  16 April 2008
13 February 2012 - by Dr Linda Wijlaars 
The Court of Appeal in the UK is hearing a case in which a gay man is fighting for greater parental access to his two-year old son he fathered with his lesbian ex-wife...
15 November 2010 - by Nishat Hyder 
A gay man and a lesbian couple have been embroiled in a complex and unprecedented legal battle in the Court of Appeal of England and Wales over access to their two children conceived through artificial insemination....
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