Home > Children and the Law, Families and the Law, Gender, Sexuality and the Law, New Judgments and Cases to Watch > McD v L in the Supreme Court: Sperm Donation, Gay Families and Marriage

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.

A number of issues arise from the case including:

  • The status of agreements which aim to govern the relationship which a sperm donor may have with a child born as a result of his donation. The whole area of assisted conception remains unlegislated for in Ireland.
    • The Court sets out that the High Court was correct in treating the agreement between the parties as unenforceable and that the issues in a case of this type fall to be determined by reference to the best interests of the child. The child’s best interests are the first and paramount consideration in any case to do with a child’s future under s. 3 of the Guardianship of Infants Act 1964.
    • The Chief Justice cast further doubt on the enforceability of such agreements, saying that ‘it is difficult to see on what basis an agreement or consent of the putative father at that stage as to his future relationship with his yet to be born child could be considered a valid and binding.’
    • The Chief Justice rejected the analogy between the consent given at adoption and the agreement of the type in this case – to donate sperm and not seek a full relationship with the child after birth on the basis of ‘change of heart’. The mother who gives consent, he suggested has already met the child, whereas the man donating sperm in this type of arrangement has not yet been faced with the living breathing child. ‘The fact is that a person in the position of McD when faced after birth with the reality of a child, a person, who is his son or daughter, even if biologically in the sense of the facts of this case, may, quite forseeably, experience strong natural feelings of parental empathy and identity which may overcome previous perceptions of the relationship between father and child arrived at in the more abstract situation before the child was even conceived.’
  • The High Court had refused access because it took the view that the hostility between the couple and their donor would persist so that access would not be in the best interests of the child. This is a point of fact rather than law and is discussed in particular detail in the judgments of Geoghegan and Fennelly JJ.
  • The High Court had also bolstered the position of the couple by treating them, together with the child as a de facto family unit protected by Article 8 of the Convention. The trouble was that no case of the Strasbourg court had brought a homosexual couple within the scope of Article 8. Hedigan J in the High Court had worked by analogy with X,Y and Z v. UK (the case of a female-to-male transsexual and his family) to extend the rights to the couple in McD (Mata Estevez v. Spain in which the European Court declined to extend Article 8 to cover a male homosexual couple was not cited in the High Court). Hedigan J. was thus interpreting Article 8 and taking it further than the European Court itself had done. The Supreme Court rejected this move as inconsistent with the Constitution.  The Chief Justice deals with the issue in all its depth in his judgment. Fennelly J. said that ‘The courts must respect the boundaries laid down by Article 29 of the Constitution. The Act of 2003 does not provide an open-ended mechanism for our courts to outpace Strasbourg.’
  • Since Article 8 did not apply the case was decided purely by reference to Irish law, and thus without reference to the rights of the de facto family.
    • In respect of McD v L, the relevant law was that  ordinary statute law which applies to non-marital natural fathers; the law of guardianship, custody and access (I blogged on the LRC’s recent proposals for reform in the area of guardianship, custody and access here). As Fennelly J. explains ‘Although it is not suggested, in the present case, that the father is any less the biological father of the child by reason of being a sperm donor, he has, as a non-marital father, no constitutional right to guardianship or custody. The principle is that he has the legal right to apply and to have his application considered.’
    • The Court clarified that the ‘de facto family’ does not exist as a rights-bearing institution at Irish law. It is not merely the case that the de facto family does not enjoy equivalent protection to the marital family under Article 41 and 42, but that it enjoys no protection as such at all. In consequence, B.M., as non-biological mother had no rights as such in respect of the child. Denham J. says in her judgment that the fact that a child lives with an unmarried couple is only relevant insofar as the child’s living arrangements, and the relationships which he will have with other members of the household fall to be weighed into the balance in assessing his best interests.
    • However, the court re-iterates the legal significance of the ‘blood link’ as a factor which will be weighed in considering the child’s best interests (though of course it can never be determinative; W O’R v EH). Fennelly J says:
      • The blood link, as a matter of almost universal experience, exerts a powerful influence on people. The father, in the present case, stands as proof that participation in the limited role of sperm donor under the terms of a restrictive agreement does not prevent the development of unforeseen but powerful paternal instincts. Dr. Byrne acknowledged that it would be “beyond what a man in that circumstance would be capable of” for him not to wish to be involved. More importantly, from the point of view of the child, the psychiatrists were in agreement that a child should normally have knowledge, as part of the formation of his or her identity, of both parents, in the absence compelling reasons to the contrary. There is natural human curiosity about parentage. Scientific advances have made us aware that our unique genetic make-up derives from two independent but equally unique sources of genetic material. That is the aspect of the welfare of the child which arises.

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