Draw Breath

Today's Supreme Court Decision on a lesbian couple, their one year old child and the biological father of that child raises more questions than answers. In their appeal, the respondents sought to overturn the decision of the High Court Judge "...that the balancing exercise should be swung in favour of the child remaining in the jurisdiction, and within proximity of his father for the purpose of developing the relationship between father and child...."

The question is not one of guardianship because under Irish law, an unmarried father has no automatic guardianship rights, although these can be applied for. If the father was aware of this prior to donating his sperm and had any sort of expectation towards seeking guardianship, one would wonder why he decided to do so. One can only assume that this was an altruistic act which was not entirely thought through.

Equally, the decision of the couple to receive sperm from a friend may not have been made with sufficient foresight. A telling phrase in the judgment is that they anticipated that the role of the man towards the child would be that of a "favourite uncle" despite the fact that the child would know that this man was his father. How could this relationship be so clearly defined, at least in words, so early on when it was impossible to anticipate what feelings both man and child might develop towards each other over time? More fool them for thinking that that agreement was viable.

This case highlights the lack of clear legislation for the relatively large numbers of gay partners who decide to have a child but also for men who father children outside marriage in general.