Pre-Implantation Embryos and the Irish Constitution

As we blogged earlier the Supreme Court today decided the case of Roche v Roche concerning, inter alia, the constitutional status of spare embryos created through IVF treatment but not implanted. The case also had important private law aspects but it is the constitutional issue that is most relevant to us at HRinI. Having now read the judgments in this case I have picked out some of the relevant quotes re the constitutional issue from the various judges. As I suspected earlier, the matter is perhaps not as cut and dried and it at first appeared in the news reports mainly because of some equivocation in the Chief Justice’s judgment although the remaining judgments seem to me on an early reading quite categorical in their finding that pre-implantation embryos do not have constitutional protection.

It is appropriate to begin with the judgment of the Chief Justice which is available here. Following an overview of the moral and ethical dilemmas faced in considering when it might be said that ‘life’ begins, the Chief Justice held that this is essentially a legislative matter as opposed to one of pure constitutional interpretation:

One comes back to the fundamental issue in this case namely whether this Court should consider that the frozen embryo is human life within the meaning of Article 40.3.3.

In the course of the appeal counsel for the appellant acknowledged that the issue is polycentric. That is to say it is an issue which must be viewed from many standpoints, moral, ethical, philosophical, theological and scientific. It is an issue on which engenders passionate views on one side or the other in virtually all disciplines.

I do not consider that it is for a Court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when human life begins.

Absent a broad consensus on that truth, it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.

….

…in the context of this case, there is uncertainty or no consensus as to when human life begins. The choice as to how life before birth can be best protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas. It is one which falls to be made having taken into account all the factors and strands of thought which it considers material and relevant.

The Courts do not have at its disposal objective criteria to decide this as a justiciable issue….The onus rests in the Oireachtas, to make the initial policy determination so as to define by law when ‘the life of the unborn’ acquires protection. The other alternative is an amendment to the Constitution.

….

Accordingly in my view it has not been established, by the appellant, and it is not a justiciable issue for this Court to decide, that the frozen embryos, constitute “life of the unborn” within the meaning of Article 40.3.3.

I don’t thinkt he CJ’s judgment holds that constitutional protection begins at implantation and that is that. Rather it think it says that we can not be satisfied that the constitutional protectin begins pre implantation. Making that decision is not a judicial role. It is a policy matter. He essentially invites the Oireachtas to legislate in this context. However, the CJ’s judgment stands alone in this context. The starkest contrast is perhaps with the judgment of Denham J available here:

45. This case is not about the wonder and mystery of human life. This is a court of law which has been requested to make a legal decision on the construction of an article of the Constitution of Ireland. The question raised is whether the term “unborn” in the Constitution includes the three frozen embryos in issue in this case. It is a matter of construing the word in the Constitution to determine its constitutional meaning.

46. This is not an arena for attempting to define “life”, “the beginning of life”, “the timing of ensoulment”, “potential life”, “the unique human life”, when life begins, or other imponderables relating to the concept of life. This is not a forum for deciding principles of science, theology or ethics. This is a court of law which has been requested to interpret the Constitution and to make a legal decision of interpretation on an article in the Constitution.

In the part of her judgment that encapsulates perhaps the purest textual constitutional reasoning, Denham J lays down her holding with far greater conclusiveness than did the Chief Justice. Although this quotation is long I think it is worth reproducing here in full. Denham J held (my emphasis):

59. The unborn is considered in Article 40.3.3° in relation to the mother. The special relationship is acknowledged. Of course there is a relationship between the frozen embryos in the clinic and the mother and the father – but not the link and relationship envisaged in Article 40.3.3°. Article 40.3.3° was drafted in light of the special relationship that exists uniquely between a mother and the child she carries. It is when this relationship exists that Article 40.3.3° applies.

60. Further, the relationship is viewed through the prism of the right to life. It applies to a relationship where one life may be balanced against another. This relationship only exists, this balance only applies, where there is a physical connection between the mother and the unborn. This occurs only subsequent to implantation of the embryo. Thus the balancing of the right to life described in Article 40.3.3° may only take place after implantation. Therefore an unborn under Article 40.3.3° is established after an embryo is implanted.

61. The concept of unborn envisages a state of being born, the potential to be born, the capacity to be born, which occurs only after the embryo has been implanted in the uterus of a mother.

62. This analysis may be put in a slightly different form. The right to life of the unborn is not stated as an absolute right in Article 40.3.3°. Rather, it is subject to the due regard to the right to life of the mother. The right to life of the mother is not stated as an absolute right either. Article 40.3.3° refers to a situation where these two lives are connected and a balance may have to be sought between the two lives. Thus the physical situation must exist to require such a balancing act. No such connection exists between the plaintiff and the three surplus embryos now frozen and stored at the Clinic. There is no such connection between the lives of the mother and the embryos at the moment. The relationship which might require the consideration of the right to life of the unborn and the equal right of the mother does not arise in the circumstances.

63. This connection, relationship, between the embryos and the mother does not arise until after implantation has occurred. After the implantation of an embryo the relationship between the embryo and the mother changes. The mother has carriage of the embryos, becomes pregnant, and the embryo enters a state of “unborn”. At that time an attachment begins between the two lives. It is that attachment which gives rise to the relationship addressed in Article 40.3.3°.

64. The words of Article 40.3.3° refers to a situation where the rights of the mother and the unborn are engaged. This occurs after implantation. Thus Article 40.3.3° does not apply to pre-implantation embryos.

This is clearly to be contrasted with the Chief Justice’s more reticent approach and appears to lay down a far clearer constitutional interpretation. More or less the same reasoning (about the need for connection between embryo and mother in the sense of carriage of the embryo before the constitutional protection would be engaged) was contained in the decision of Hardiman J available here. Fennelly J’s judgment is short but also categorical in its finding that pre-implantation embryos do not enjoy constitutional protection (judgment here). Geogheghan J. focused perhaps somewhat more on historical interpretation than did some other judges but he was clear in his conclusion that the constitution was not intended to deal with spare embryos of the type at issue in this case and that constitutional protection does not engage until implantation. In this judgment we find perhaps the starkest of the multiple indications that the Court is of the view that legislation is urgently required. Geogheghan J held:

I want however to make it clear at this stage that I am in agreement with the often expressed view that spare embryos, being lives or at least potential lives, ought to be treated with respect. The absence of a statute or statutory regulations indicating how that respect should be given is undesirable and arguably contrary to the spirit of the Constitution.

I suspect we should see at least some legislative activity in this sphere in the next year or so.

2009 Dublin University Law Journal

The new DULJ is out and features a number of contributions touching on human rights including three by members of HRinI:

• The Constitution, Property Rights and Proportionality: A Reappraisal (Rachael Walsh) p.1
• Is Silence Golden? The Legislative and Judicial Treatment of Pre-Trial Silence in Ireland (Yvonne Daly) p.35
• Access to Justice and Costs in Environmental Judicial Review (Phyllis Comerford) p.66
• Domination and the Hijab in Irish Schools (Tom Hickey) p.127
• Restrictions on Religious Dress in French Republican Thought: Returning the Secularist Justification to a Rights-based Rationale (Eoin Daly) p.154
• Legal Positivism, Natural Law and the Constitution (Oran Doyle) p.206
• Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(i) of the Constitution (Tom Daly) p.228
• Visiting Committees and Accountability in the Irish Prison System: Some Proposals for Reform (Mary Rogan) p.298
• Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-based Approach for Legal Reform? (Eilionóir Flynn) p.357
• Protecting Young People from Themselves: Reform of Age of Consent Law in Ireland (Catherine O’Sullivan) p.386
• Recent Issues in Refugee Family Reunification under Irish Law (Patricia Brazil) p.412
• Fair Procedures, Local Authority Housing, the Constitution and the European Convention on Human Rights (Mark Coen) p.423

Ireland to take over as Chair of the OSCE in 2012

At the 17th Ministerial Conference of the Organisation for Security and Co-Operation in Europe (OSCE) in early December it was agreed by the member states that Ireland would take over as Chair of the Organisation  in 2012.  The OSCE is a regional security body that currently has over 56 participating states including members in Europe, Central Asia and North America such as the United States, the UK, the Holy See, France, Russia and Canada. Ireland joined the organisation as an original member in 1973, though the organisation in its current form emerged in 1994 in the post Cold War era.  Its work covers areas such as arms control, anti-trafficking, combating terrorism, conflict prevention, democratisation, elections, gender equality, minority rights, policing, rule of law, tolerance and non-discrimination.

At the recent ministerial conference Minister Micheál Martin T.D. stated

Ireland attaches great importance to the role and expertise of the OSCE in the protection of human rights and fundamental freedoms and the promotion of the rule of law and democratisation throughout the OSCE area.

Ireland attaches great importance to the role and expertise of the OSCE in the protection of human rights and fundamental freedoms and the promotion of the rule of law and democratisation throughout the OSCE area.

The announcement that Kazakhstan was to take over the Chair from Greece in 2010 led to some controversy, as Kazakhstan’s human rights record was not considered to be good enough to lead  an organisation that seeks to support human rights development and enforcement in its members states.  Indeed Human Rights Watch described the choice of Kazakhstan as ‘undeserved’

“Kazakhstan doesn’t observe OSCE commitments at home,” said Holly Cartner, Europe and Central Asia director at Human Rights Watch. “Entrusting in Kazakhstan the leadership to uphold the organization’s human rights commitments is a singularly bad idea.”

The choice of Lithuania to follow from Kazakhstan has been less controversial.  The Irish Department of Foreign Affairs announced in November that after Ireland had been approached by a number of members the Government had decided to formally make itself available as Chair of the Organisation in 2012.  Ireland’s Chair  was confirmed at the Ministerial Conference.  It was reported in the Irish Examiner that the Minister in welcoming Ireland’s appointment considered Ireland’s experience in the peace process in Northern Ireland would allow Ireland to make a tangible contribution to the work of the organisation.  As we nearer the time for Ireland to take over as Chair of the Organisation it will be interesting to see what human rights priorities for the Organisation that it champions.

Embryos and the Right to Life: The Supreme Court Decision

RTE News reports that the Supreme Court has handed down its judgment in a case in which case the appellant was seeking to have three embryos created with her ex-partner released to her for implantation. Her ex-partner, on the other hand, claimed that there was no agreement permitting her to have these embryos for use following the dissolution of the relationship. From a human rights perspective it is particularly important to note that a sizeable amount of the argumentation revolved around whether an embryo is entitled to constitutional protection under Article 40.3.3 of the Constitution (right to life). The Supreme Court held that the constitutional protection only applied from the point of implantation of an embryo and not from the point of creation.

The judgment is not currently available online although we anticipate that it will be posted relatively shortly. It is somewhat difficult to draw conclusions from a news report of a court decision, and it would be wise to wait to read the exact terms of the Court’s decision on implantation and constitutional protection before commenting on its constitutional significance, however if the RTE report is an accurate representation of the Court’s decision in this respect then this would seem to put any questions that may have existed about measures such as the morning after pill beyond constitutional doubt.

We on HRinI will, of course, be covering the human rights law elements of this decision further as the judgment is released, digested and discussed.

UPDATE The judgments in this case can now be accessed from the Courts Service website by clicking here.

LRC Report on Criminal Defences

(from www.lawreform.ie)

The Law Reform Commission’s Report, Defences in Criminal Law was published yesterday and is available on their website. The lengthy Report is the result of extensive research and consultation, including a seminar and three consultation papers. The Report deals with the defences of legitimate defence; public defence; provocation and duress and necessity. The main recommendations of the Commission’s Report are available in the Commission’s press release here.

The Irish Times reports that the Minister for Justice Dermot Ahern intends to enact the draft Criminal Law (Defences) Bill 2009, which is attached as an appendix to the Report.

While space does not permit a detailed analysis of the recommendations, this blog discusses the recommendations relating to legitimate defence and provocation. For the rest of the recommendations, see here.

Legitimate Defence:

The Commission recommends a new defence of ‘legitimate defence’ to replace that of self-defence. The new term reflects the justificatory (as opposed to excusatory, as the partial defence of provocation) rationale underlying the defence; in other words, society is not condemning the defendant’s actions, because they are viewed as being in some way justified or required by the exigencies of the situation facing the defendant. It is therefore a full defence to a charge of murder.

The Commission’s recommendations are grounded in 4 key requirements, designed to help jurors navigate a path around discriminatory and biased assumptions and wholly subjective standards. These core requirements are:

(1) A threshold requirement concerning the type of unlawful attack on the person, especially where lethal force is used in response

(2) The imminence or immediacy of the attack

(3) The necessity of the defendant’s use of force including a duty to retreat where it is safe to do so.

(4) The proportionality of the force used, including where disproportionate lethal force is used. Crucially, the test of whether the use of force is necessary and proportionate is based on an objective standard of a reasonable person. Excessive self-defence is retained for cases in which the force used was not objectively necessary and proportionate.

In and of themselves, these recommendations are not particularly revolutionary. The case-law developed in relation to the defence of self-defence contains all of these requirements. The problem however is that they were bundled up into the rather confusing concept of “reasonable in all the circumstances”, thus forcing trial juries with the difficult takes of unpacking the meaning of reasonable and applying it to the defendant in the case before them.

The most newsworthy recommendations in the Report are likely to be those relating to the defence in the home. According to the Commission:

“ The Commission recommends that the general requirements for legitimate defence (Self-defence) should apply to defence of the dwelling and its vicinity.

The Commission recommends that the general rule that a person should retreat where possible does not apply where the attack is in the home.

The Commission also recommends that, if all the requirements of the defence are met, use of lethal force would be a complete defence to murder and would lead to an acquittal.”

This recommendation enshrines the castle doctrine – in other words, the defendant does not have to retreat when faced with an unlawful attack in his or her home. In this recommendation the Commission is echoing the judgment of the Court of Criminal Appeal in DPP v Barnes [2006] IECCA 165.  There the Court confirmed the constitutional protection afforded to the dwelling house by Article 40.3.3. Furthermore, under section 8 of the Non-Fatal Offences Against the Person Act 1997 the use of force is lawful in order to protect property. The issue of course is the amount of violence employed and its relation to the threat posed. Indeed the Court in Barnes stressed, “it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill [a burglar] simply for being a burglar.”

Commissioner and Professor of Criminal Law at UCD Finbarr McAuley identifies the need for clarity in the law in this area:

“The current law leaves everything caught up in a vague rubric of reasonableness. We need to codify the law and set out limits in terms that give substance to overarching legal concepts,” he said.

“Shooting a man in the back as he flees in retreat can hardly be described as necessary. But on a vague reasonableness basis, who knows what a jury might think?”

Crucially, the changes proposed in section 3 of the Draft Bill in relation to the use of lethal force against an intruder, are prefaced by the words “ Without prejudice to the generality of section 2”. Section 2 contains the requirements of imminence, threshold, (which are repeated in section 3); necessity to retreat, where it is safe to do so (this is even in the case of the home) and proportionality.

If a person is attacked in their own home, it is highly likely that the requirement of imminence will be satisfied without any recourse to arguments about the importance of the dwelling home. Simply put, if the homeowner faced an imminent threat to his or her life or bodily integrity, then a proportionate and necessary response would quite possibly be the use of lethal force. In reality the threat to the home often also encompasses the threat to the homeowner’s personal safety. However, in cases where the intruder merely threatens the homeowner’s property interests- for example by simply entering the house, unarmed, to steal the car keys, the jury would surely not be expected to find that the use of lethal force was justified? This is the kernel of the controversy raised by the Commission’s recommendations. There is a dissonance between the Commission’s recommendations and the provisions of the Draft Bill. While the Report and the recommendations emphasise that the force used in defence of property should be subject to the requirements of imminence, necessity and proportionality,(p.45)  these factors are not made clear in the provisions of the Draft Bill. Section 3 sets out that a person is justified in using lethal force in his dwelling-or in the vicinity  of the dwelling- if that force is by way of a defence to the threat of or the use of serious personal harms,(eg rape, death)  but importantly, also to repel the entry or occupation fo eth dwelling or damage or destruction of the dwelling. It would therefore appear that the Commission’s Draft Bill goes much further than the CCA  did in Barnes and seems to be placing the right to defence of property above the right to life of the intruder. The constitutionality of such a move is doubtful. Indeed the courts will be vigilant to ensure that homeowners do not cross the line from defence  to revenge, as happened in a recent case in Britain. The ICCL has criticised the provisions  as a “have a go charter” that will place homeowners at increased risk of , by encouraging them to stand their ground even when it is safe to escape. However it is precisely this didactic function of the criminal law reform that Minister Ahern is keen to stress. He is cited on the Irish times website as saying that:

“This is putting burglars on notice that if they do go into houses in this way that the person in the house is given more protection than here-to-fore.”

In light of the predictable rise in property crime that tends to accompany recessions, it will be interesting to see what the courts, and more importantly, what jurors will make of  this defence, if enacted. Certainly while its instrumental character is consonant with current cultural narratives surrounding property crime and crimes against the elderly, it remains to be seen if the government will see fit to place on a clear statutory footing the requirements of necessity, proportionality and imminence, when considering the draft legislation.

In this regard it is also important to remember the case of DPP v Nally [2006] IECCA 128, which raised interesting questions about the role of the jury in the legitimacy of the criminal justice process. In that case the defendant’s first conviction for manslaughter was quashed by the Court of Criminal Appeal because the trial judge had failed to allow the full defence of self-defence to go to the jury, holding instead that the evidence supported a conviction for murder or for manslaughter, but not an acquittal. The trial judge’s insistence on a “truncated” version of self-defence was fatal, essentially because it undermined the legitimating function of the jury in the criminal justice system. In its report, the Commission notes that “The impact of the Court of Criminal Appeal decision in Nally cannot be underestimated in terms of procedural issues regarding self-defence and in terms of the relationship between judges and jury” (at p.42). However the Commission stressed that it was concerned with the substantive content of the defence.

Provocation:

The Commission also makes a number of recommendations relating to the defence of provocation. Space does not permit a detailed analysis here. However the key issue to note is that the Commission seems to be keen to inject an element of objectivity into the assessment of the defendant’s response to the allegedly provocative act.

“The defence should be based primarily on whether the provocation (words or acts,

such as assault) was such that it was reasonable for the accused, based on the

standard of an ordinary person, to have lost self-control. “

This is a most welcome development in light of the excessively subjective bias of the provocation defence under the current law. Indeed, in People (DPP) v Davis [2001] 1 IR 146,157- The Court of Criminal Appeal accepted that it is virtually impossible to disprove evidence of provocation once it has been introduced under the rubric of the subjective test established under DPP v MacEoin People (DPP) v Mac Eoin [1978] IR 27

In relation to cumulative provocation, the Commission emphasises that the focus should not solely be on the temporal link between the allegedly provocative act and the defendant’s actions. Instead ” the the presence or absence of an immediate response to provocation should be a matter which a jury is to take into account, along with all the other evidence, in deciding whether the accused lost self-control. This could be especially relevant in the context of cumulative violence.”

While the defence of Battered Women Syndrome has not been embraced in Irish law, a not dissimilar version was accepted by the Central Criminal Court in People (DPP) v Hennessy (Finnegan J) October 2000 and April 2001, where it appears to have been accepted that evidence of the “surrounding circumstances” leading to the killing could go to the jury on the issue of provocation. (Irish Times 11 October 2000 at 4 “Husband Killed wife in a moment of rage”).  Given that the circumstances in question were that the accused was suffering from stress occasioned by the fact that he had been suspended from his job on suspicion of embezzlement, and that the trial judge acknowledged the deceased’s contribution to his violent out burst – she had told him he was “no good” and had “slapped him across the face” – appeared to be of a very low level., the trial judge still allowed the appeal to go the jury. The jury found that there was a sudden temporary loss of self control. It was noted that the accused suffered from a very sever stress when the embezzlement began, but that he was responsible for the stress thus created.  He was sentenced to 8 years for manslaughter.

Last Friday a jury accepted a plea of diminished responsibility (a relatively new partial defence, created by the Criminal Law (Insanity) Act 2006) and acquitted a woman of the murder of her husband and found her guilty of his manslaughter.  The Irish Times Report is here.

The defendant hit her husband on the head 23 times with a hammer. Over six days the jury heard “harrowing evidence’ of an extremely violent and abusive marriage. The Sunday Tribune carries an evocative portrayal of the litany of abuse endured by the defendant and her children at the hands of the deceased.  Two psychiatrists who gave medical evidence on behalf of both the defence and prosecution agreed that the defendant was suffering from a mental disorder, i.e. severe depression, at the time of the killing.

From a critical feminist perspective, the construction of female anger and violence as occurring in circumstances of diminished responsibility is consonant with traditional legal systems construction of women defendants as mad or bad. The hystericisation and medicalisation of female defendants is in stark contrast to the male conception the defence of provocation.  Furthermore, quite apart from the issues of gendered binaries, is that of the medicalisation of women’s stories of lethal violence, where the ‘truth’ is filtered through a series of professional discourses, including psychiatric and legal discourses, that distances the public and the jury from the reality of violence against women and the reasons why they might use lethal violence.

While the Commission does not deal directly with these issues, it opens the door to a broader conception of the meaning of ‘relevant circumstances’, stressing that “[t] he fact that the killing did not immediately follow the provocation does not, in itself, mean that the defence cannot be raised. Instead, the presence or absence of an immediate response to provocation should be a matter which a jury is to take into account, along with all the other evidence, in deciding whether the accused lost self- control. This could be especially relevant in the context of cumulative violence.”

It remains to be seen whether this recommendation signposts a movement towards a broader conception of provocation, or whether women defendants will have to continue to resort to medicalised discourses in pleading mitigating circumstances.

Bias Against Immigrants to Ireland

The Irish Times reports that more than half of all sub-Saharan Africans to Ireland have experienced discrimination.  The Times is working from the EU-MIDIS survey, available here. The survey team interviewed 23,500 people from ethnic minority and immigrant groups in the EU about their experiences of discrimination.

Shannon on Zaunegger v Germany

Today’s Irish Times carries an article by Geoffrey Shannon on the implications for Irish law of the decision in Zaunegger v Germany. Here is a taster – the article is worth a read.

THE RECENT European Court of Human Rights judgment on the rights of an unmarried father may have far-reaching implications for Ireland, writes Geoffrey Shannon.

The court recently handed down a very important decision on joint custody that may have far reaching implications for the rights of unmarried fathers in Ireland. Joint custody involves a child residing with each parent for a stipulated period.

The significance of this ruling, however, derives from the rights it attributes to marriage-like relationships rather than its consideration of joint custody per se.

Under Irish law, unmarried fathers do not have an automatic right to the day-to-day care of their children (known as “custody”) nor do they have an automatic right to a say in the upbringing of their children (known as “guardianship”). Nor do unmarried fathers have a right to joint custody. Rather, they have a statutory right to apply for guardianship, custody or joint custody, which will be determined according to the nature of the relationship between the child and the unmarried father.

Following the recent decision of the European Court of Human Rights in Zaunegger v Germany, the Irish law governing the attribution of guardianship, custody and joint custody should be reviewed to determine its compatibility with the European Convention on Human Rights.

van Turnhout on Budget 2010: The Rights of the Child

HRiI has  the pleasure of introducing a further guest blog on the impact of Budget 2010 from Jillian van Turnhout, Chief Executive of the Children’s Rights Alliance.

Budget 2010 was the most discussed, debated, analysed and awaited Budget in the country’s history.  Never before has a Budget generated so much anticipation, concern – even fear – across all sectors of society.  At home and abroad Budget 2010 was seen as the Government’s chance to show that it was capable of leading the country out of recession; and could demonstrate to international partners that Ireland can take steps to reverse its misfortunes and emerge strong.  The McCarthy Report on Public Service Numbers and Expenditure (‘An Bord Snip Nua’ report)[1] and the Commission on Taxation Report,[2] both published in summer 2009, advised Government on how to achieve an overall budgetary adjustment of €4 billion.  At Cabinet, it was agreed that this year the focus would be on cuts, not taxation.

In total, measures announced in Budget 2010 amounted to €4 billion in savings, made up of over €1 billion from the public sector pay bill, €760 million from social welfare, €980 million from day-to-day spending programmes, and €960 million from investment projects.  With these reductions, the Government aims to stabilise the national deficit in a fair way, safeguard those worst hit by the recession, and stimulate the crucial sectors of the economy to sustain and create jobs.

16 Days: Day 17 – Violence Against Transgender People

Over the past two and a half weeks, this blog has marked the 16 Days of Activism Against Gender Based Violence event by highlighting many of the campaigns and issues touching on violence against women. The focus of these posts has been on violence against women as this is the theme of this year’s event. However, a notable exception to this discussion has been the issue of violence against transgender people.

Transphobia encompasses not just the revulsion and irrational fears of transgender and transsexual people, but also includes cross dressers, feminine men, and masculine women. Therefore, it covers complex issues of gender roles and gender identities.

Transgender people are often denied legal recognition in their preferred gender identity. Such is the legal situation in Ireland, as has been discussed on this blog here and here. Yet, the prejudices and injustices experienced by transgender people are not limited to the lack of legal recognition.

Violence, based on their gendered status, is regularly experienced by many transgender people. November 20^th last, marked the 11^th Annual International Transgender Day of Remembrance, which commemorates the fact that every day, all over the world, thousands of trans people are excluded, persecuted, hated, mistreated, subjected to aggression and routinely murdered or driven to suicide because of the transphobia of others.

Recently, the Transgender Equality Network Ireland published an excellent report ‘Transphobia in Ireland’. We want to draw readers’ attention to this much needed research.

McD v L in the Supreme Court: Sperm Donation, Gay Families and Marriage

Yesterday, the Supreme Court handed down judgment in McD v L & Anor [2009] IESC 81. (The judgment of Denham J. was not accessible at the time of posting). The Irish Times Reports here, and notes the reaction of the Gay and Lesbian Equality Network here. The case is an appeal from a refusal by Hedigan J. in the High Court to make orders either allowing J McD – who Geoghegan J. calls ‘a sperm donor/father of an infant’ – to be guardian of his infant son or allowing him access to the child. The respondents are the child’s mother PL and her female partner BM; they are partners in an English civil union. J’s appeal on guardianship was not granted, but his appeal on access was granted and remitted to the High Court.

The Attorney General was a notice party to the case.  There are 4 judgments in the case; the Chief Justice, Denham J., Geoghegan J. and Fennelly J. Mr. Justice Hardiman concurred. The facts of the case are summarised in the Chief Justice’s judgment as follows:

In order that PL could become pregnant McD entered into an agreement with her and BM to donate his sperm for that purpose. That agreement purported to govern the role and relationship which McD would have with the child which would be born as a result, it also being agreed that PL and BM as a couple, would have full care and custody of the child, effectively as if both were in the position of parents. Accordingly under the agreement it was acknowledged that PL and BM were to be the parents fully responsible for the child’s upbringing and that JMcD at most would be a “favourite uncle”. This concept was not defined as such but it was explicitly provided that JMcD would not have any responsibility for the child’s upbringing and would not seek to influence it. The agreement envisaged that both respondents would to all intent and purposes be the ‘parents’ of the child and would control and determine the manner and extent to which the role of “favourite uncle” could be exercised or performed by the appellant. After the birth of the child matters did not work out as the parties originally envisaged as is evident from the summary of the evidence in the judgment of the High Court and outlined in particular detail in the judgment of Fennelly J. In substance, subsequent to the birth of the child, the appellant adopted a different stance as regards his relationship with the child than that envisaged by the agreement. Effectively he now seeks to assert rights as the father of the child and, inter alia, to be appointed a guardian of the child and have rights of access. He does not seek custody. The respondents for their part were disturbed and distressed at this evolution of events which they consider threatens their autonomy as a couple having exclusive parental rights in respect of the child. From their standpoint the appellant has betrayed the terms of the agreement and, inter alia, their right to determine the extent to which he would have access or contact with the child and the degree and circumstances under which he would come to know his biological father. The child, is placed at the centre of this de facto situation which has given rise to the conflicting issues concerning his future welfare and the role which McD, PL and BM should have in it.

What follows is a summary of the main issues in the judgment. We may have fuller commentary in due course.