Recognising Rainbow Families – the Issues Discussed

Have you ever gone to the zoo but been refused a family ticket because the cashier didn’t consider you a proper family?

Have you ever had to refuse the offer of a promotion because it required you to move your family to another country where your rights were not recognised?

Have you ever been unable to bring your sick child overseas for treatment because the parents named on your child’s birth cert weren’t accepted by the passport office?

These are just some of the challenges facing LGBT+ families that were discussed at OUTLaw’s event in A&L Goodbody on Tuesday night on the topic of “Recognising Rainbow Families: How close is the law to providing legal rights for LGBT+ parents and their children?”. This event was held in collaboration with LGBT Ireland and the Lesbian Lawyers Network.

Rebecca Townsend, ALG’s representative on the OUTLaw committee and Chair of OneALG (A&L Goodbody’s LGBT+ and ally network), opened the evening by welcoming all the attendees, reminding people what OUTLaw is about and thanking the speakers and ALG for hosting.

Rebecca passed the microphone to Björn Sieverding, Vice President of the Network of European LGBTIQ* Families Associations (NELFA), who spoke about the current legal situation in Europe for rainbow families, NELFA’s case collection project including some examples, and NELFA’s cooperation with ILGA-Europe and recent efforts to build up a European Lawyer’s Network. Attendees heard about the complications LGBT+ parents face in addition to the normal challenges that come with parenting a child.

Björn then handed the floor over to Deirdre Duffy, a board member of LGBT Ireland, who chaired a panel of experts made up of Declan Harmon, BL, Fiona Duffy, Solicitor, and Dr Lydia Bracken, Assistant Dean, Equality, Diversity and Inclusion, University of Limerick.

Limitations and lacunae

Declan addressed the first question in relation the law as it currently stands. He pointed out that, while many considered that the passing of the Marriage Equality referendum in 2015 would put a lot of the issues facing LGBT+ families to bed, the reality is that this has not been the case. There are limitations in the current law in relation to:

1. Surrogacy. The panel argued about whether the Assisted Human Reproduction Bill 2017 (AHR Bill) was moving at a glacial pace, would lose to a glacier in a race or was just at a complete standstill. Whatever the answer the news is not good for anyone looking to avail of surrogacy services, be they in a heterosexual or homosexual relationship, as it is currently impossible for parents to have their rights recognised in Ireland.
2. Child and Family Relationships Act 2015 (CFRA). This Act was intended to provide for the parents of children conceived using donor-assisted human reproduction (DAHR) to be recognised in law. However, 4 years later, crucial parts of this Act have still not been commenced. This is due to a ‘pass-the-parcel’ exercise going on between three governmental departments. For example, no department wants to have responsibility for the setting up of the National Donor-Conceived Person Register required by the CFRA.

Declan deferred to the parents in the room to speak to the practical implications of these gaps in the law. But he explained that it essentially comes down to the ability to be legally recognised as a parent. He argued that being appointed as a guardian was sub-optimal and people should be afforded legal recognition for the parenting they are doing on a daily basis rather than having to go through the guardianship process. The CFRA legislation was rushed through so that surrogacy would not muddy the waters for the marriage equality referendum. But, rushed law is usually bad law and we are now dealing with the consequences.
Closing the Gaps

Fiona Duffy then spoke to the question of which of the gaps that have been left by the current legal regime would be closed in the near future. Fiona noted that the CFRA only benefits female couples. She found it hard to accept that there was no future, in the short-term, for male couples who wish to start a family.

The commencement of Parts 2 and 3 of the CFRA will provide a pathway for both female partners to appear on the birth cert. Part 2 redefines parentage to include the parents, be they a homosexual or heterosexual couple, of a donor-conceived child. If a woman gives birth to a child after this section commences, and she complies with the restrictions in the Act, this child will be a child born of both parents in the couple. Part 3 imposes requirements on the fertility clinics which will be performing the DAHR procedures.

Part 9 of the CFRA also remains to be commenced and deals with amendments to the Civil Registration Act 2004. On 23 May 2019 the Civil Registration Act 2019 was enacted. The 2019 Act amends the CFRA so that now Part 9 of the CFRRA must commence within 54 months of the date of the original passing of the CFRA e.g. by 5 October 2019. This Act also amends the Civil Registration Act 2004 and allows two females to be registered as the parents of a child born through donor conception.

While section 20 of the CFRA deals with retrospective registration Fiona advised anyone thinking of having a child using a DAHR procedure to consider whether their decisions around conception would entitle both people in the relationship to parental rights. Consult your solicitor before conceiving!

AHR Bill opportunity

Lydia then spoke about the AHR Bill (the General Scheme of which has been published), what it covers at the moment and what it should cover to be best in class. The AHR Bill proposes to regulate surrogacy in Ireland however, the legislation is restrictive and not fit for purpose. The table below shows what the AHR Bill proposes to cover.

Surrogacy in Ireland Covered
International surrogacy Not covered
Gestational surrogacy (where the egg is provided by another woman) Covered
Commercial surrogacy (where the woman donates her egg and carries the child) Not covered
Altruistic surrogacy (where the woman is only paid ‘reasonably expenses’) Covered
Paid surrogacy Not covered

If your surrogacy is one of the types covered by the AHR Bill you will have to engage in a two-stage process, similar to adoption, in order to become the legal parents of your child. First you need permission to engage in the surrogacy from the AHR Regulatory Authority, which will be established by the AHR Bill. Once you have this authorisation you can engage in the surrogacy process. When the baby is born the surrogate is the legal mother and the biological father is the father. The intending parent (i.e. the non-biological parent) must apply for a Parental Order in order to transfer parentage. This order can only be applied for from 6 weeks post-birth until 6 months post-birth. This means that for the first 6 weeks of the child’s life one of the parents will not have any legal rights in relation to that child e.g. the right to consent to medical treatment.

Another restriction in the proposed AHR Bill is that there is no provision to recognising children already born through surrogacy. Although surrogacy is currently illegal in Ireland, out of the 90 countries surveyed, we still came out as the second highest user of surrogacy services. Therefore, there will be a lot of children, born to both same-sex and opposite-sex couples, affected.

While international surrogacy will not be covered by the AHR Bill, like now, couples will still go abroad to avail of these services. This creates problems (1) trying to get the child home to Ireland and (2) because the relationships between the child and its parents will not be legally recognised.

Because the process of drafting the AHR Bill is still ongoing this does provide the opportunity to lobby politicians for provisions to amend the CFRA to be included in the Bill. Lydia recommended that amendments should be made to include:

1. provision for retrospective declarations of parentage to allow for situations where a known donor was used;
2. non-clinical DAHR procedures (i.e. home insemination) – to reflect reality;
3. reciprocal IVF (where the woman carries a baby created using her partner’s egg and donor sperm); and
4. DAHR conducted abroad – as some procedures are not available in Ireland.

In response to a question from the audience, Lydia stated that these would all be easy to remedy by way of small amendments and changes to the wording. She pointed out that, like most Irish law, the AHR Bill was based on the UK law in this area i.e. a post-birth model of parentage. However, the relevant UK Law is currently the subject of a Law Commission consultation that proposes to change the law to allow intended parents become legal parents when the child is born. If this approach is adopted it will provide good leverage to advocate for a similar model to be adopted in Ireland.

Question Time

The questions which followed the panel discussion proved that this is a very complex legal area. The personal nature of the queries indicated that there is a lack of information available to people as they were forced to use public forums to get the answers they need. It was acknowledged that even for a person with legal training the legislation is difficult to follow. There are no governmental supports available to people who are trying to understand their rights. To make matters worse there is a lot of misinformation coming from the media. All of this combines to make it very difficult for people trying to understand the conception choices they might make which would leave them with no parental rights and what they need to do to assert the rights that they do have.

Björn mentioned NELFA’s use of strategic litigation in his presentation. Unusually for a barrister, Declan responded to a question on this stating that the failings of the Irish legal system in this regard would be better dealt with in the political rather than the legal arena. Therefore, it would appear that the best time to resolve these issues is in the AHR Bill.

In summary

Deirdre concluded that the law needs to reflect the lived reality of families. There needs to be equality between traditional and non-traditional family structures. She also pointed out that we create traditions and diverse family forms were becoming traditional.

Björn reminded those present that while children have a right to know their identity not having legal ties to one of their parents is not in their best interests. People just want to live life as a family and we cannot punish children for the way they came into the world.

Björn pointed out that the members of NEFLA are not legal experts. The same can be said of LGBT Ireland. However, both bodies are contacted by couples looking for advice. All these organisations can do is try to connect people with the services they need. Björn pointed out that LGBT+ couples just want to get on with the daily job of parenting. Which, as any parent will know, does not leave much time for bringing cases to the European Court of Justice!

Often LGBT+ families are seen as a minority within a minority, some countries consider that a Rainbow Families is not a family and everywhere the law are based on what a traditional family is. We need to move away from the idea of a family based on biological links to the concept of a functional family i.e. who were the intended parents and who is actually doing the parenting day-to-day. We need to ensure that our legal system supports the types of families that already exist.

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