Gay sperm donor given access to his son

LEGAL JUDGMENT:THE SUPREME Court has unanimously ruled that the gay friend of a lesbian couple who donated his sperm to one of them so she could have a child is entitled to access to the three-year-old boy but not guardianship.

The man, as a biological father, has the right only “to apply” to be appointed guardian and it is for the courts to decide the issue of guardianship in all the circumstances, with the welfare of the child the paramount consideration, the five-judge court ruled.

In this case, it was in the child’s best interests to remain in the custody of his mother with his father having access rights, it found.

It was a “critical factor” the child has lived with his mother and her partner since birth and they are a couple since 1996, taking loving care of the child in a settled environment, Mrs Justice Susan Denham said.

Mr Justice Hugh Geoghegan said access should be limited and a 2005 agreement under which the man was to have the status of a “favourite uncle”, while enforceable only to the extent it protected the child’s welfare, was sensible. Any closer connection, unless it had complete agreement, was likely to be “wholly disruptive” and against the child’s interests.

Mr Justice Nial Fennelly, with whom Mr Justice Adrian Hardiman agreed, said the man was largely responsible for the complete breakdown of mutual trust between himself and the couple after the child’s birth in 2006 as he had departed from the agreement with the couple, claiming he should be recognised as the child’s father.

The Supreme Court also found the lesbian couple and child are not a family under the Constitution and ruled the High Court erred in finding they are a “de facto family” entitled to invoke family rights under Article 8 of the European Convention on Human Rights (ECHR).

The Constitution has been interpreted by the courts as defining the family as based on the marriage of a man and woman and there is no institution here of a “de facto family”, it said.

The Chief Justice, Mr Justice John Murray, said the ECHR was not generally part of domestic law and not directly applicable and the High Court had no jurisdiction to directly apply the provisions of the convention as it had.

The European Convention on Human Rights Act 2003 did not give direct effect to the convention and the current jurisprudence of the European Court of Human Rights did not find same-sex partners fall within family life under Article 8.

Mr Justice Fennelly said changes in the ECHR jurisprudence were to be expected and national legislation “might also address these difficult problems”. The mother’s partner has no legally or constitutionally recognisable family relationship with the child, he noted. The court was delivering reserved judgments allowing the appeal by the man against the High Court’s refusal of access but rejecting his appeal against the refusal of guardianship. The matter will go back to the High Court to determine access issues unless the sides reach agreement on access.

The man, in his 40s, was in court and his lawyers said he was “very happy” with the outcome. The couple, who took part in a civil union ceremony in England some years ago, were not in court.

The child was born in 2006 with sperm donated by the man. He and the couple had signed a written agreement in 2005 under which the couple were to be the child’s parents, the man was to be known to the child as his father and was to have visiting rights.

Mrs Justice Denham said the fact the man was the biological father was not a determinative factor but, in refusing access, the High Court gave insufficient weight to his status and the fact it generally benefits a child to have the society of their father. It was also relevant the man was not an anonymous sperm donor and had entered a situation where it was anticipated he would have contact with the child.

The agreement between the sides, while not enforceable, showed their intention and was notably signed after pregnancy was confirmed, she added.

The High Court had attached excessive weight to the view of a child psychiatrist that the father should not have any rights that would interfere with the child’s family life with the couple. The psychiatrist recommended against guardianship or access and said he believed the couple would involve the father in an appropriate way when the boy was older.