The law changes slowly to fit modern Irish families

The State has dragged its feet on regulating in the area of surrogacy and assisted reproduction, writes Louise Crowley

The law changes slowly to fit modern Irish families

RELUCTANCE on the part of the State to intervene in the autonomy of the Irish family has given rise to a slow-moving and piecemeal approach to the regulation of family law issues.

This week, the Supreme Court is being asked to decide upon the law and policy that will govern the identity of the mother of children born as a result of a private surrogacy arrangement, given the repeated failure of respective governments to tackle the issues of surrogacy and assisted reproduction. Last year, Mr Justice Henry Abbott declared the parentage of the children in question to be directly linked to their genetic source, ordering that, in the absence of governing provisions, the genetic mother should be registered as their mother, on the basis that blood relationships are paramount in determining parenthood.

The State has appealed the decision, calling for the reversal of that ruling in order to reinstate the traditional view that the birth mother is recognised by law as the mother of a child. This case, involving a married couple and a surrogate — the sister of the applicant wife — has identified an alarming deficiency in Irish family law relating to the fundamental issue of motherhood.

Notwithstanding this failure to regulate surrogacy and assisted reproduction, over the last 25 years the landscape of Irish family law has changed profoundly, giving rise to an improving regulatory framework that seeks to govern multiple family formations, with respect to their composition, operation, and dissolution. These reforms continue to take place against a background of significant societal change, resulting in a more progressive view of the concept of the family and the associated structure of rights attaching to all parties to a family unit, irrespective of its formation and composition.

Recent proposals for family law reform include those giving rise to the contentious debate surrounding the definition of the family, with a commitment from Government that the equal right to marriage will be brought before the people for consideration by way of referendum in 2015.

Equally, the long-standing vulnerable legal position of the unmarried father is finally being addressed. The Heads of the Children and Family Relationships Bill 2014 were published last week, and the new law proposes automatic rights for the father of a child where he has cohabited with the mother for a period of 12 consecutive months before the child’s birth. This long-awaited yet still dramatic development is coupled with the capacity for the cohabitant or civil partner of a child’s parent to apply for guardianship status where he or she has cohabited with that parent for a period of more than three years and had day-to-day care of the child for more than two years.

These legislative proposals finally represent willingness on the part of Irish lawmakers to recognise the fact of the non-traditional family and to create a legal structure that recognises multiple rights in diverse parenting situations, including step-parents, cohabitants, and civil partners.

It is hoped that these substantive legal developments, together with the welcome restructuring of the Irish family courts and the recent introduction of limited family law case reporting will collectively contribute to the more effective understanding and resolution of the multi-faceted issues arising in the family law context.

* Dr Louise Crowley, senior lecturer at the Faculty of Law at University College Cork, is the author of Family Law, which addresses the crucial issues of the regulation of the family, marital breakdown, the rights of civil partners and cohabitants, adoption, parental rights, child law, child abduction, State intervention in the family, and domestic violence.

The aim of this book is to provide a detailed and critical overview of Irish family law in a modern multicultural society where the limited concept of rights holders has shifted from the traditional family based on marriage to a developing legal framework which expressly protects all parties irrespective of the nature of familial relationships. These developments, together with the proposed constitutional referendum in 2015 on the equal right to marriage represent the real and very welcome modernisation of family law.

Circuit Court Judge David Riordan launched the book this week.

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