From The Editor

It’s taken three years (and you’d have to question why, exactly) for the Children and Family Relationships Act (CFRA) to be amended so that the change to the constitution in relationship to same-sex marriage could be recognised, and same-sex parents can at last register both their names on their child’s birth certifi cate and passport. The Act’s wording made it impossible for this to happen, leaving a lot of parents confused and disappointed.

However, there is still a lot of confusion in advance of the amendment. For instance, the amendment may provide for same-sex parents who become pregnant through the help of IVF clinics to both be named on their child’s birth certifi cate, but if they had a child, or will have a child in the future through home insemination, this will not be the case.

The reason home insemination isn’t covered is because of a Supreme Court judgment from 2009, which dealt with a lesbian couple and a gay man who had a baby through home insemination. The Supreme Court ruled that the known donor who helped the women conceive a child should be treated the same in law as any other natural father. As result, the Oireachtas will not allow for the removal of the rights of the known donor retrospectively, before the commencement of the Act or for future families, even if the donor accepts they have no parental role in the child’s life. This means that the children of known sperm donors will have lesser rights than those of unknown sperm donors.

Couples who have children through surrogacy are also not covered by the legislation. In early July there were reports in the media that a gay male couple were struggling to get an Irish passport for the child they had through surrogacy in Canada, where it’s legal for both men to have their names on the child’s birth certifi cate. They were told under Irish family law that their surrogate and her husband could be considered the legal parents of their son in Ireland, even though neither of them has a biological connection to him, given that a donor egg was used, and the surrogate relinquished all rights.

That couple may be able now to get their names on the child’s birth certifi cate and passport, but Irish law will not change in relation to surrogacy. The Act does not change the basic rule that the birth mother is the legal mother of a child, even if they have no biological connection, in the case of surrogacy. The biological father of a surrogate child can apply for guardianship, but the non-biological second parent has no legal rights. This leaves couples, both gay and straight, who have surrogate children in legal limbo.

It’s not good enough. The CFRA should wholly recognise and include the diff erent ways people are having children and families in our modern world. The majority of same-sex couples use either home insemination or surrogacy to have their children, and so the children of the majority of same-sex couples are not currently protected by this legislation. The ammendments to the CFRA should absolutley iron out these grey areas, and make the rights of same-sex parents and their children unassailable.