A gay man in Ireland who donated his sperm to a lesbian couple has lost his High Court bid for guardianship and access to his biological child.
The 41-year old, known only as ‘A’, signed an agreement that he would not occupy the role of father but would act as a ‘favourite uncle’ and have access to the child at the discretion of the couple.
Following the birth of the baby boy in May 2006, the couple claim the man changed his view on the situation and began to see himself as a father.
In his ruling at the High Court in Dublin on Wednesday, Mr Justice John Hedigan found that the man had misled the couple as to his true intentions in entering into the sperm donation agreement.
He ruled that the welfare of the child was best served by the boy to continue in the care, custody and guardianship or the lesbian couple and that the man should not get any court-ordered access.
He stated that there was nothing in Irish law to suggest that a family composed of two women and a child had any lesser right to be recognised as a de facto family than an unmarried man and a woman with a child.
According to RTE News, the Court heard that the couple felt “betrayed and violated” by the man and that the relationship between him and the child’s mother was described as “poisonous.”
The relationship broke down further when the man secured an injunction last year preventing the couple from taking the child to Australia for a year pending the outcome of this action seeking orders for guardianship and access.
Mr Justice Hedigan also stated 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 was something that called for ‘urgent consideration’ by the the Oireachtas, the Parliament of Ireland.
He said that judging by the evidence presented to the court, situations of same sex couples wishing to bear a child are occurring with greater frequency throughout the world than might have previously been thought.
New legislation before the UK Parliament aims to make it easier for lesbian couples to access NHS fertilisation services.
At present there is no prohibition on licensed clinics treating same-sex couples or single women but the law requires that NHS fertility clinics take account of the “need for a father” when assessing women for treatment.
In practice this can lead to clinics deciding not to accept lesbians and those women instead using “DIY” methods in order to conceive.
The Human Fertilisation and Embryology Bill contains new rules that will allow gay and lesbian couples to become the legal parents of a child conceived through donated sperm and replaces the “need for a father” with “responsible parenting.”
The provisions also mean that lesbians will have equal access to fertility services, which could mean IVF but is much more likely to mean assisted conception.
DIY sperm donation will still be legal but under the proposed laws the non-birth mother not in a civil partnership could not be on the birth certificate.
The advantages of using a fertility clinic mean that the donor is registered, and cannot be legally held responsible for the child’s welfare or upkeep.
His name does not appear on the birth certificate.
Details of the donor, such as his last known address, name and medical information are kept and can be shown to the child when he or she reaches 18, or before if the legal parents consent.
For men who may be asked by a lesbian friend to donate sperm, there is the legal reassurance that they can donate informally if they want, become a registered donor, and know that they will not be legally responsible for the child’s maintenance.