McD. -v- L. & anor, [2009] IESC 81 (2009)

Docket Number:186/08
Party Name:McD., L. & anor
Judge:Fennelly J.

THE SUPREME COURTRecord No. 186/2008Murray CJ.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.





J. MCD.Applicant/Appellant- and -

P. L. AND B. M.RespondentsJUDGMENT of Mr. Justice Fennelly delivered the 10th day of December 2009.

  1. This appeal concerns the rights of the biological father of a male child (hereinafter "the child"), born as a result of sperm donation and artificial insemination as well as the rights of the child. Sperm was provided to the child's mother who is in a long-term same-sex relationship with another woman.

  2. By Order dated October 24th 2008 the Attorney General was joined by this Court as a notice party to the proceedings, having regard to the significance and novelty of the legal issues. The Attorney has made important written submissions on a number of the key issues. Some of these issues were not fully considered in the High Court.

  3. The appellant is the father. The first-named respondent is the mother of the child; the second-named respondent is her female partner. I will refer to the appellant as the father. I will refer to the respondents as P.L. and B.M. or together as the respondents. On occasion, I refer to P.L. as "the mother."

  4. By judgment of 16th April 2008, Hedigan J. after a hearing lasting fourteen days in the High Court refused the father's claims for guardianship and/or access to the child.

    The Facts

  5. The evidence given in the High Court covered at great length and huge detail the entire history of the relationship between the parties, especially the arrangements they entered into for the provision by the father of his sperm, the ensuing events leading up to the birth of the child and then the later emergence of disagreements, conflict and complete rupture of relationships. Hedigan J. resolved disputed issues of fact, mostly in favour of the respondents. While the father contests a number of the findings, the broad outline of the facts is clear enough. I do not think it is relevant to trace in detail the history of the relationship between the father on the one hand and the respondents on the other hand. The legal issues in the case do not depend on who was right or wrong on each issue.

  6. The father is a single gay man, aged 41 years. While he lived for some years in the United States, he has lived in Ireland for some ten years and has worked in the area of design.

  7. P.L. is of Australian nationality. She is 42 years of age. She is qualified as an occupational therapist. B.M. is Irish, aged 53; she is a psychiatrist.

  8. P.L. and B.M. met in London in the mid-1990s. They entered into a lesbian relationship and have lived together as a same-sex couple in a stable relationship since about 1996. They moved to live in Dublin about 2003, but travelled to London to enter into a form of Civil Union under English law at a ceremony in London on 27th January 2006.

  9. The respondents saw themselves as a couple in a permanent relationship and wished to have a child. Their intention at all times was that the child would be part of a family in which they would be the sole parents. On the other hand, they did not wish to use an anonymous sperm donor. The donor would be known and his identity would (ultimately) be disclosed to the child. He would not have any parenting role. His role would be that of "favourite uncle." He would have contact with the child only at their discretion.

  10. The respondents informed themselves about artificial insemination by sperm donation. P.L. was to be the mother. They discussed their wishes with friends and approached a number of males, including a friend living in Amsterdam. They entered into a written agreement with him. Attempts by P.L. to conceive from the sperm of this friend over the years from 2003 to 2005 were unsuccessful.

  11. The respondents first met the father very briefly at a party in Dublin in December 2004. The possibility of his becoming a sperm donor was raised but not very seriously.

  12. After Christmas the father met the respondents. They had more significant discussions. They gave him a copy of a book about Lesbian Parenting. There was a dispute about whether they also gave him what was described as a draft of the agreement he would be asked to sign. In fact, this was a copy of the agreement they had made with the Amsterdam friend. The respondents said that they had given him this in January. The father said that they had not or did not remember. The learned trial judge found in favour of the respondents.

  13. There was some controversy about whether the father read the book about Lesbian Parenting. The learned trial judge criticised him for not reading it sufficiently, in particular those parts which dealt with the relationship between the sperm donor and the child. The father's evidence was that he did not like aspects of the book, especially those parts which suggested that the donor would not have any role. He accepted that he had not read the book through. The father blew hot and cold about the whole project during the early months of 2005. His uncertainty was undoubtedly related to the crux of what became the dispute between the parties, namely the extent to which he, as donor, would have any involvement with any child that would be born. He told the respondents about March that he would not go ahead. It has to be said that the respondents were always very clear about the matter. They alone would form a family unit with the child, who would have two female parents. The donor would not be anonymous, but neither would he play the normal role of father. He would have no parenting role.

  14. There was occasional contact between the parties in the early months of 2005. The father had some health tests done and informed the respondents of the results.

  15. In July 2005, the father approached the respondents again. On 9th August, 2005, he met them at their home. The agreement (the first draft so far as the father was concerned, the second according to the respondents) was printed from P.L.'s computer. It was not signed at that stage. It was amended to insert the father's name and to substitute the word "friend" for "long term friend."

  16. The father provided sperm samples on 9th, 10th and 11th August. P.L. inseminated herself. At the end of August the father visited P.L. She informed him that she was pregnant.

  17. The draft agreement was amended at the father's suggestion by the inclusion, at the end, of a provision relating to the eventuality of the death of the respondents.

  18. The agreement was, substituting the designations the father, P.L. and B.M., for their actual names as follows:

    "Agreement on Sperm Donation by the father to P.L. and B.M.

    P.L. and B.M. have lived together as a couple for over 7 years and decided that they would like to have a child. The father is a friend and has agreed to act as a sperm donor. This arrangement was agreed upon in preference to an anonymous sperm donation (as it would be in the interest of a child to have knowledge of their biological father).

    The child will know that the father is his/her biological father. The child will be encouraged to call him [name given]

    Birth Certificate:

    The father doesn't mind if his name is included or not on the birth certificate, and is agreeable to whatever P.L. and B.M. decide upon this matter.

    Parental Role:

    A agrees that the child's parents are P.L. and B.M. The father would like to have some contact with the child but will be under no obligation to do so. He sees his role as being like a 'favourite uncle'. He will not have any responsibility for the child's upbringing and will not seek to influence the child's upbringing.

    Contact Arrangements:

    The father will be welcome to visit P.L., B.M. and their child at mutually convenient times. This will be at the discretion of P.L. and B.M. The father wants to make sure that the child will establish a solid relationship with P.L. and B.M., as parents and will not want to interfere with this in any way.

    Financial obligations:

    P.L. and B.M. will be fully responsible for the child's upbringing and B.M. will have no financial obligations to the child.

    Child's contact with the father's extended family:

    The child's extended family will be the extended families of P.L. and B.M. Contact with the father's extended family will be at the discretion of P.L. and B.M.

    In the event that P.L. and B.M. should pass away, the father's contact with the child should continue uninterrupted as per his history of involvement. Also the father's opinion should be considered in terms of deciding the best guardianship arrangements for the child.

    This agreement was drawn up at [address]"

  19. The agreement in that amended form was signed by the father, P.L. and B.M. on 11th September, 2005.

  20. The agreement purported to lay down rules governing in advance the relationship between the child and the father, on the one hand, and the respondents on the other. It is drafted to give effect to the respondents' intentions and understanding of the entire set of relationships. P.L. and B.M. are to be the parents, "fully responsible for the child's upbringing." The father, at most, is to be a "favourite uncle." While he would like to have "some contact" he has no obligations in that regard and any visits are to be in the discretion of P.L. and B.M. Perhaps the most explicit provision for the father is that: "He will not have any responsibility for the child's upbringing and will not seek to influence the child's upbringing."

  21. None of this is to say that the agreement is legally binding. That needs to be considered at the level of legal principle, taking account especially of the interests of the child.

  22. It emerged over the following periods covering the time before the birth of the child, but especially afterwards that the respondents had...

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