Women in same-sex marriages still not both officially parents

Children’s Minister Katherine Zappone wants to fast-track legislation permitting adopted persons to trace their birth parents. Picture: Gareth Chaney Collins

The State has boasted about 'fast-tracking' abortion legislation, but three years after the Children and Family Relationships Act not everyone's parental rights have been acknowledged, says Brian Tobin

THERE has been much pontificating about “fast-tracking” legislation on certain family law and human rights issues.

Health Minister Simon Harris wants to fast-track legislation on abortion and, in light of a national scandal, Children’s Minister Katherine Zappone wants to fast-track legislation permitting adopted persons to trace their birth parents.

However, the Children and Family Relationships Act, 2015, was enacted over three years ago, yet not a single government politician has championed commencement of Parts 2 and 3 of that act.

These would enable female, same-sex married couples to both be recognised as the legal parents of their donor-conceived child.

This failure, on the part of our elected officials, has resulted in much hardship, distress, and legal uncertainty for married couples and their children, and it is difficult to reconcile with the State’s express pledge, in Article 41 of the Constitution, to “guard with special care the institution of marriage”.

No special care is being afforded by the State to the new constitutional family, consisting of a female, same-sex married couple and their children, when, more than three years after the Irish people voted for marriage equality, crucial parental rights still have not been provided for — no fast-tracking here.

In May 2016, the Department of Justice confirmed that because Parts 2 and 3 of the 2015 act deal with donor-assisted human reproduction (DAHR), their commencement falls under the remit of the health minister.

Mr Harris had only been in office two weeks at the time, but the necessary preparatory work, regarding commencement of Parts 2 and 3 of the 2015 act, was in progress, according to the Department of Justice.

Alas, it is now two years since Mr Harris entered office, and still there is no progress on this human rights issue.

Female, same-sex married couples who have commenced the process of having a child via donor-assisted conception, or those who are already raising a child born via this method, are not a priority for Ireland’s newfound champion of women’s rights, Minister Harris.

Male, same-sex married couples fare no better in “new Ireland”.

The Department of Health published the General Scheme of the Assisted Human Reproduction Bill in October, 2017.

Part 6 provides for the regulation of surrogacy for the first time in Ireland, a means by which a male, same-sex married couple would be able to procreate. However, eight months later and the General Scheme is now lost in the limbo that is pre-legislative scrutiny, and Mr Harris is nowhere to be found to ensure that his department’s legislative proposals are fast-tracked.

The failure to expedite the surrogacy proposals might not necessarily be a bad thing, because, in their current form, they are so restrictive that, if they were to ultimately acquire the force of law, they would be extremely likely to discourage the practice here in Ireland.

This would result in male, same-sex married couples continuing to have recourse to (expensive) international surrogacy arrangements in order to start a family and, upon their return with the child, only the man who provided the sperm would be able to be recognised as a parent under Irish law. The General Scheme does not propose to settle issues of parentage in international surrogacy scenarios.

It might actually be more fitting for the minister to ‘readily scrap’ rather than ‘fast-track’ these draconian legislative proposals.

In 2015, Ireland made history by becoming the first country to grant same-sex couples access to civil marriage by means of a popular vote. Nonetheless, fundamental parental rights for same-sex married couples are still not a reality in our allegedly progressive, inclusive democracy.

It is now three years post-marriage equality and same-sex married couples are being failed by a State that is constitutionally obliged to protect them.

Our legislators and policy-makers have much empathy, it seems, for women who wish to terminate a pregnancy in Ireland, but absolutely none for women, and men, who can only initiate one with assistance.

Dr Brian Tobin is a lecturer in law at the School of Law, NUI Galway

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