IN MAY 2015, over 1.2 million people voted in favour of marriage equality here. That vote for equality echoed around the world. It sent out a flare that a new Ireland was emerging – an Ireland that was more tolerant, inclusive and welcoming of all LGBTQ+ people. It heralded a new era in which Ireland would be a forerunner for LGBTQ+ equality and a beacon of hope for people around the world.
The marriage equality referendum vote was about more than just the right to marry. The will of the people was clear; they wanted LGBTQ+ people and LGBTQ+ relationships treated equally by the State.
In the aftermath of the vote, there is an onus on the Government to make that vision a reality. Unfortunately, the important work to reform the law has been slow and, eight years after the referendum, there are still gaps in the law.
The enactment of the Children and Family Relationships Act 2015 was a significant and welcome step in the right direction for equality for children of LGBTQ+ parents. For the first time in the State, two same-sex intended parents could be listed on a child’s birth certificate.
This meant that LGBTQ+ headed family units became recognised by the State, and a legal parent-child relationship could be established between both intended parents and child.
However, both intended parents could only be listed on the child’s birth certificate if the circumstances of the child’s birth and conception fell within the strict parameters of the legislation.
Unfortunately, we know from research by Dr Lydia Bracken from the University of Limerick that the majority of children born into LGBTQ+ headed families are conceived or born outside the narrow parameters and, as a result, are prevented from having a legal parent-child relationship with both of their parents. This is an injustice.
To remedy this situation, today I introduced a new private members bill in the Dáil. The bill, which has been produced in collaboration and partnership with LGBT Ireland and Equality for Children, if passed, would close the gaps in the law.
The Labour Party has been a proud and vocal ally of the LGBTQ+ community for decades. This bill is another page in the long chapter on Labour’s role in fighting for LGBTQ+ equality. My predecessor and then Tánaiste, Eamon Gilmore, aptly described marriage equality as the civil rights issue of our generation. I’m proud of the role the Labour Party played in securing and winning the referendum. While that battle was won, we have more work to do. This is about fairness. This is about human rights and, ultimately, it’s about equality for children.
The former Special Rapporteur for Child Protection, Professor Conor O’ Mahony, in his 2020 report, A Review of Children’s Rights and Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy and Irish Law, said that the current framework has had a negative impact on children’s rights to non-discrimination and to recognition of family relationships.
At present, there are four categories of children born through donor-assisted human reproduction who are prevented from forming a full legal relationship with both of their female parents.
These are children conceived with a known donor prior to May 2020, children conceived in non-clinical settings, children conceived outside of Ireland and children born outside of Ireland. The place of your birth or the mechanics of your conception should not determine whether or not you can have a full legal relationship with your parents. There are no moral, ethical or policy reasons why children of same-sex couples are being denied full family rights.
The detailed bill I’m proposing in the Dáil addresses all four areas. It offers a process whereby an application can be made to the court where all the substantive policy aims of the current legislation can be met. This means that where intending parents have gone through screening, confirmed the consent of those involved and registered identifying information in respect of the donor they can be granted their declaration of parentage by the Court.
The bill introduces a presumption of maternity to offer true equality to children of both opposite and same-sex couples. It also introduces the paramountcy principle to ensure that, in all court applications under the Children and Family Relationships Act, the best interests of the child are the paramount consideration. Finally, it rights the wrong of the exclusion of the use of known donors from retrospective declarations of parentage, which was based on a faulty legal premise that parentage could only be transferred if the genetic father was unknown.
While these may seem like minor technical changes to some, the granting of full parentage would have a profound impact on the children and parents, particularly when children are sick, need to establish citizenship, require legal documents such as a passport and when it comes to tax status, inheritance and in the event of marital breakup. The changes will provide security and comfort. Most importantly, it will provide legal confirmation of what is a practical reality.
It would end the legal limbo that has left hundreds of children of same-sex female couples with no way to establish a legal relationship with both of their parents, who love and care for them on a daily basis.
Children of LGBTQ+ people must be treated equally. They must be afforded the same rights as other children – nothing less, nothing more. The Government’s Assisted Human Reproduction Bill, which is currently at Committee Stage in the Dáil, would have been the ideal vehicle to address the lacuna in the law. Unfortunately, the Bill as it currently stands doesn’t deal with these issues. This is a shame and a missed opportunity for reform. In addition, that bill has been delayed time and again.
Families shouldn’t have to wait any longer. With cross-party support and Government time in the Dáil, the bill I’m introducing this week could and should be enacted. The equality the people voted for in the Marriage Equality Referendum won’t be fully realised until this issue is resolved.
Ivana Bacik is the leader of the Labour Party and a Labour TD for Dublin Bay South.
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