Brian Tobin


A noble campaign trying to reach very complex objectives

Trying to get both women in a same-sex relationship to be recognised as a mother in assisted human reproduction is not straightforward, writes Brian Tobin

A noble campaign trying to reach very complex objectives

Trying to get both women in a same-sex relationship to be recognised as a mother in assisted human reproduction is not straightforward, writes Brian Tobin

The Equality for Children campaign was launched recently with a public demonstration outside the Department of Health.

It aims to improve the rights of children born to LGBT+ parents by making the Government finally commence crucial parts of the Children and Family Relationships Act, enacted as far back as 2015.

Once commenced, both women in a same-sex relationship will be able to be recognised as the legal parents of a child born to them via physician- assisted human reproduction.

Currently, only the woman who gives birth to the child is recognised by Irish law as its mother and recorded on the birth certificate. Her same-sex partner has no parental rights and cannot be recorded on the birth certificate, even though donor sperm was used to conceive.

Further, ‘reciprocal IVF’ or ‘shared motherhood’ is popular among same-sex couples, because it allows one woman to be the gestational mother, and the other to be the genetic mother.

Essentially, one woman carries to term an embryo formed from an egg donated by her partner and donor sperm and implanted by physicians in a clinic.

However, even when the necessary parts of the 2015 act are finally commenced, same-sex couples in this situation will not both be able to be recognised as the child’s legal parents because this method of procreation is not covered under the provisions of the act.

In the act, a donor and the intended second parent of the child cannot be the same person, and because the genetic mother in a reciprocal IVF scenario is in fact also the egg donor, she cannot then be recognised as a legal parent.

Nonetheless, this unfortunate and perhaps unintended outcome can be rectified via a number of amendments to the existing legislation, or in future legislation on the subject.

Essentially, where children are conceived via donor sperm or reciprocal IVF and donor sperm in fertility clinics then parental rights can quite easily be recognised through legislation if the Oireachtas is spurred into action.

However, the Equality for Children campaign could face a much greater challenge in persuading politicians to move to recognise parental rights where children are conceived via ‘home insemination’ or international surrogacy.

Home insemination raises complex legal issues because of a 2009 Supreme Court judgment equating the parental rights of a sperm donor in this context with those of a genetic father.

After all, where the parties choose to conceive without the assistance of a fertility clinic, the donor does not waive in writing his legal parental rights concerning the child, and the Supreme Court has held that any ‘sperm donation’ agreement drawn up by the parties in which he purports to do so is unenforceable.

Indeed, home insemination raises further issues. Although the majority of couples having recourse to this method of assisted reproduction are responsible enough to source identifiable donor sperm which respects the child’s right to knowledge of genetic identity, there are some couples who simply acquire anonymous donor sperm and use it to home inseminate, thus depriving the child of any possibility of acquiring knowledge in relation to one of its genetic progenitors.

If our troubled history in relation to adoption in this country has taught us anything, it’s that access to knowledge surrounding one’s genetic identity is fundamental to an individual’s sense of self and mental well-being.

Finally, there is the legal position of children born through international surrogacy.

Although some progress is being made on legislating for surrogacy that takes place here in Ireland, the draft legislation contains no provisions that will recognise as parents both of the parties raising a child born from surrogacy abroad.

Obviously, the man who provided the sperm can be recognised as a parent under Irish law, but the proposed law will not recognise the legal parentage of the non-genetic co-father in a same-sex relationship.

Globally, those states that regulate the practice of surrogacy differ remarkably so in deciding whether to recognise such parentage in legislation the Oireachtas would first have to grapple with some extremely difficult questions.

Most children born via international surrogacy are born in States that permit commercial surrogacy arrangements to take place between the parties, and the law in some of those destinations permits ethically questionable practices such as pre-implantation genetic screening or ‘sex selection’ to be carried out by the fertility clinics.

Put simply, regulating parentage of children born through assisted human reproduction is not nearly as simple as asking the State to wave a magic wand and make all parents ‘equal’ in the eyes of the law.

The matter raises many dilemmas and questions surrounding children’s rights. While Equality for Children is undoubtedly a noble campaign, it cannot be denied that it is trying to achieve some very complex objectives.

Dr Brian Tobin, Lecturer in Law, School of Law, NUI Galway.

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