Dr Brian Tobin, lecturer at the School of Law in NUI Galway, said the last government had failed to commence “vital provisions” of the Children and Family Relationships Act 2015, even though it was signed into law by President Michael D Higgins in April last year.
He said the new Fine Gael-led minority government needs to remedy what he called an untenable state of affairs as soon as possible, as lesbian married couples with donor-conceived children are “currently left in a legal quagmire”.
“Following the signing into law of the Children and Family Relationships Act and the success of the Marriage Equality Referendum shortly thereafter, numerous lesbian couples began to plan for two important things, marriage and children,” Dr Tobin said.
“The successful referendum result in May 2015 meant legislation allowing same-sex marriage would follow shortly thereafter, so numerous lesbian couples in Ireland began to plan their weddings for late 2015.
“They also began the process of conceiving a child via donor insemination in Irish fertility clinics throughout the summer of 2015, believing that once the child was born they would both be able to be recognised as its married parents.”
However, he said, sections 20 to 23 of the Children and Family Relationships Act 2015 had not been commenced which would allow the child’s mother and her same-sex spouse to apply to the court for a declaration the spouse is a parent of the child.
“Unfortunately, as matters currently stand, only the woman who gave birth to the child is allowed to be registered as its mother on the birth certificate and her spouse, the child’s second female parent, is not allowed to be registered as a parent because the law does not yet recognise her as such given the State’s failure to commence the relevant provisions of the Children and Family Relationships Act 2015,” Dr Tobin said.
“Lesbian couples who married late last year and had a child within marriage this year now find that their marital family unit is not adequately recognised by the State because they cannot both be registered as the legal parents of their donor-conceived child.”
A spokesperson for the Department of Justice confirmed specific sections had not been commenced. “This is the case because parts two and three of the Children and Family Relationships Act have not yet been commenced [nor indeed the relevant provisions of part nine, which will make the necessary changes to the Civil Registration Act],” the spokesperson said. “Sections 20 to 23 are in part two of the act and cannot be commenced in isolation.
“Commencement of parts two and three is a matter for the Minister for Health, and we understand that the necessary preparatory work is in progress.”