A GAY friend of a lesbian couple who donated his sperm to one of them, resulting in the birth of a boy now aged almost two, has lost his landmark High Court bid for guardianship of the child and has also been refused access.
In rejecting the man's case yesterday, Mr Justice John Hedigan said the welfare of the child was best served by remaining with the lesbian couple and by the man having no guardianship or access.
There was nothing in Irish law to suggest a family of two women and a child "has any lesser right to be recognised as a de facto family than a family composed of a man and woman unmarried to each other and a child", he stressed.
Mr Justice Hedigan said the rights of a man who acted as a sperm donor were at least no greater than those of an unmarried father. The man had a mere right to apply to be appointed as a guardian but had no right to be appointed a guardian. In considering his application, the child's welfare was the paramount consideration.
Where there were factors negative to the child's welfare, the blood link was of little weight and not a determining factor, he said. Where there were positive factors beneficial to the child, there may be rights and interest inherent in the sperm donor.
Where a lesbian couple lived together in a long-term committed relationship, they could be regarded as constituting a de facto family enjoying family rights under article 8 of the European Convention on Human Rights, he said. He believed there existed such personal ties between the couple and the child as to give rise to family rights under article 8 which did not conflict with Irish law.
The judge also stressed that the absence of any provisions in Irish law taking account of the existence of same-sex couples, and securing their rights under article 8, "seems something that calls for urgent consideration by the legislature". Included in this consideration should be the situation where such a couple wished one of them to bear a child, the judge added.
The evidence in this case was that this was happening with greater frequency throughout the world.
A range of issues arose for consideration and possible regulation, including access to fertility facilities, the need for counselling, the rights and likely problems of the parties among themselves and possible succession rights between child and biological father, Mr Justice Hedigan added.
"It is to be hoped that current consideration of the position of de facto families in Irish law may help to avoid in the future the emotional trauma to which the parties in this case have been subjected."
He further found that, as the evidence established no relationship other than a biological one between the man and child, the man did not have family rights under article 8 of the human rights convention.
In relation to the claims by the man for guardianship and access, the judge said the paramount issue in the case was the welfare of the child. The evidence established that the child lives in a "loving, secure, de facto family" with the lesbian couple, who had undergone a civil union ceremony in England and been together for 13 years. There was no dispute they were "excellent parents".
A court-appointed expert, a psychiatrist, said the man should not have rights which could interfere with the child's family life with the couple and had recommended against guardianship or access. In his view, he said, the evidence amply confirmed the expert's view.
The judge noted the couple believed that the child should know who his biological father was and were prepared for the man to have contact with the child at an "age appropriate" time.
