Lesbian Co-Parenting and Assisted Reproduction: In an Age of Increasing Alternative Family Forms, Can Ireland Continue to Ignore the Need for Legislative Boundaries to be Placed on 'Fertile' Ground?

• Author: Megan Leonard Kane
• Position: Senior Sophister LLB Candidate, Trinity College Dublin
• Pages: 5-32

LESBIAN

CO-PARENTING

AND

ASSISTED

REPRODUCTION:

IN

AN

AGE

OF

INCREASING

ALTERNATIVE

FAMILY

FORMS, CAN

IRELAND

CONTINUE

TO

IGNORE

THE

NEED

FOR

LEGISLATIVE

BOUNDARIES

TO

BE

PLACED

ON

"FERTILE"

GROUND?

MEGAN

LEONARD

KANE

Just

as motherhood

is

viewed

as

the

most

natural

expression

of

women

's

essential

being,

lesbianism

is

associated

with

violations

of

the

natural

order

in

the

popular

imagination.

Lesbian

sexuality

is

transgressive

both

because

it

seems

to

make

lesbians

independent

of

men

and

because

it

is,

by

definition,

non-procreative.

Introduction

Despite numerous

calls

and

growing

public

concern,

this

country

remains

without

any form

of

statutory

regulation

concerning

in

vitro

fertilisation

treatment

(IVF).

In the

absence

of

legislation,

the

only

guidance, on

a

voluntary

basis,

comes from

the

various guidelines

issued by the

Irish

Medical

Council

and

the

Institute

of

Obstetricians

and

Gynaecologists.

Yet

whilst

such standards

address

medical

and

scientific aspects

of

Assisted

Reproductive Technologies (ARTs),

they naturally

eschew

the very

real

and

significant

legal

implications

that

flow

from

such

practices.

In

the

absence

of

any

statutory

impetus,

the

judiciary

is

currently

attempting

to

fill

the

legislative

void

by

confronting

fundamental

legal

issues

on

a

case-by-case basis,

2

which, with respect,

is

not

the

appropriate

forum to

introduce

and devise

regulation

on such

ethically,

socially

and

politically

sensitive issues.

3

Senior

Sophister

LLB

Candidate,

Trinity College

Dublin.

1

Ellen Lewin, "On

the Outside

Looking

in:

The

Politics

of

Lesbian Motherhood"

in Faye

D

Ginsburg

and

Rayna

Rapp

eds.,

Conceiving

the

New

World

Order:

The

Global

Politics

of

Reproduction

(University

of

California

Press,

1995).

2

See

McD

v

L

&

Another

[2008]

IEHC

96;

MR

v TR

[2006]

IEHC

359.

3

Conor Power

and Geoffrey

Shannon enunciate similar

views

in

"Practice

and

Procedure"

(2009)

12(2)

Irish

Journal

of

Family

Law

45.

©

2010

Megan

Leonard

Kane

and

Dublin

University Law

Society

Trinity

College

Law

Review

In

light

of

this,

the

purpose

of

this

article

is

to

consider

one

specific

aspect

of

the

prodigious

gay

rights

debate in

this

jurisdiction

and

to

look

beyond

the

conventional

equality

campaign

to

the

now

attendant

issue

of

homosexual

parenting through

the

medium

of

such ARTs.

More

specifically,

this

article

shall

focus

on

lesbian

parental rights,

as

attempting

to address

the

plethora

of

legal issues

regarding

surrogacy agreements,

guardianship

and

custody rights

in

the

context

of

male

homosexual

parenting

would

require

an

avenue

of

research

far

beyond

the

scope

of

this

article.

Naturally,

an

encumbrance

to

any

potential

reform

is

the fact

that

this

jurisdiction's

entire

legislative

framework,

particularly

in

the

context

of

family

law,

is

premised

upon

the

archaic and

ideological

principle

that

the

marital

family reigns

supreme;

4

consideration

will

thus

be

given

to

the

constitutional

consequences

or

potential

challenges

to any

proposed

developments.

Examination

of

our current domestic framework

would

be

rendered

largely

irrelevant

if

viewed

in

a

vacuum; adding

another

dimension

to

analysis

will

be

the

impact

of

the

European Convention

on

Human

Rights

on

Irish

law

since

its

incorporation

in 2003.

History

informs

us

that

if

the

law

fails

to

keep pace

with

reality,

it

becomes

largely

impotent.'

2006 census

figures

suggest

that

there

are

almost

3,000

co-habiting

gay

and

lesbian

couples

in

Ireland.

6

While this

is

undoubtedly

an

under-representation

of

the

true

picture,

it

serves

to

highlight

the

fact

that

the

number

of

same-sex

households,

and

in

many

cases,

same-sex parents,

is

rapidly increasing.

This

article

explores the

possible

avenues

of

Irish

reform.

Factors

such

as

the

Constitution,

the

recommendations

of

the

Commission

on

Assisted Human

Reproduction

in

2005,

7

recent

Irish

judicial

findings,

jurisprudence

pertaining

to

Article

8

of

the

European

Convention

on

Human

Rights,

"best

interests"

theories,

and

rights

of

the

de

facto

family

will

all

be

taken

into

account

in

an

attempt

to

construct

a

viable

alternative

to

the

current

legal

standing for lesbian-headed

families.

4

See

infra,

note

9,

for

Article

41

of

Bunreacht

na

hiireann.

5

Adiva

Sifris,

"The

Legal

Recognition

of

Lesbian-Led

Families:

Justifications

for Change"

[2009]

Canadian

Family

Law

Quarterly

197.

6

2090 same-sex

couples

were

enumerated

in the 2006 Census,

yet

exact figures

are

unattainable. Following

a

submission

from GLEN

to

the

Census Advisory

Group,

the

Central

Statistics

Office

has

included

some

new

direct questions

on

same-sex couples

in the

Pilot

for

the

2011

Census. However,

as

of

yet,

there

remains

no

accurate

data

on

a

national

level.

7

Commission

on

Assisted

Human

Reproduction,

established

by the

Minister

for

Health

and

Children

in 2000,

which published

a

Report

in

May

2005.

[Vol. 13