The rights of de facto families

THE HIGH Court judgment this week on the right of a lesbian couple to rear a child without access to his biological father raises profound issues about the nature of families and how the law can regulate them. It is not known whether the judgment will be appealed to the Supreme Court, but even if it is, and if it is not upheld there, the issues will not go away. Leaving the courts to deal with them on an ad hoc basis is not good enough.

An Oireachtas committee is currently considering the rights of the child with a view to a constitutional amendment. To date it has been bogged down in the narrow issue of the protection of under-age girls from sexual exploitation and has not addressed broader concerns. These touch on the family and how it is defined, the supports it can and should receive from society, and how the rights of the child can be asserted independently of, and occasionally in opposition to, the family into which it has been born or to which it now belongs.

In this regard we have long experience in this State of adoption, both the export of children for adoption in the 1940s and 1950s and, more recently, the phenomenon of Irish couples adopting children from overseas. The experiences of adopted people and their parents, both natural and adoptive, has brought fresh insight to the complex issues of identity and psychological wellbeing raised when a child is reared outside its birth family. It must be stated that these experiences have been usually, though not always, positive from the point of view of the adopted children. Nonetheless, they have brought home the importance of providing information on birth parents and their culture - and of contact with them, where possible.

Even more difficult and complex issues are raised by new reproductive technologies where up to five people can be involved in the birth of a child. In addition, these technologies open the possibility of same-sex parenting, a reality already in Irish society where a parent discovers his or her true sexuality, and forms a same-sex relationship after producing a child in a heterosexual relationship. There has been a marked reluctance on the part of our legislators to deal with these issues, despite the existence of detailed reports from the Commission on Assisted Human Reproduction.

However, they must be dealt with in order to avoid a situation where the only guidance in this area is a patchwork of court judgments crafted to meet specific circumstances.

This is not a matter for striking partisan political positions but one of utmost seriousness, requiring the broadest possible debate, drawing on the latest research on child psychology and protection needs as well as international legal developments. It should allow all interested parties to participate while making every effort to reach an informed consensus on the design of a legal framework for the Irish family in the 21st century. Central to this must be the paramount importance of the interests and rights of the child. A forum needs to be found to consider this crucial matter and give the serious attention it deserves.

© 2008 The Irish Times

This article appears in the print edition of the Irish Times