The High Court has granted parentage to a gay man who alleged the woman who gave birth to their children resiled from their co-parenting agreement.
In a recently published judgment, Ms Justice Nuala Jackson said there was no written contract outlining the proposed parenting roles of the father and mother.
Donor eggs were used for conception, which took place outside Ireland, and the woman claimed the man’s role was limited to “sperm provider”. She said she is part of a single-parent family and it was never envisaged that he would have a role in the children’s lives.
The judge came to the conclusion that before and during early pregnancy, the pair envisaged the man would have an ongoing, hands-on role with the children but that the woman’s position “fundamentally altered” over time. She said the father had not seen his young children in nearly two years, except for during one assessment.
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Ms Justice Jackson affirmed a lower court’s joint custody order and set out a schedule for the man to have access to the children for three out of every four weekends and on certain weekdays. She also granted him guardianship on an interim basis, while expressing hope that he will not use this position to advance further opposition towards the woman and her parenting.
Irish law provides that the woman who gives birth to a child is the lawful mother even if there is no genetic link between them, the judge said. The man who provided sperm for conception is the child’s father, but the circumstances will dictate his parental rights.
The Circuit Family Court declared the man to be the father and granted him joint custody and access to the children who would remain in the primary care of the mother. The woman appealed these orders but did not turn up in the High Court. The man cross-appealed against the court’s refusal to appoint him a guardian of the children.
Ms Justice Jackson gave her decision in the case several months ago but the written ruling was only published recently. She said she was satisfied she too could declare the man to be the children’s father.
For this, she drew inferences from the woman’s failure to facilitate court-directed DNA testing of the children, considered evidence from the woman’s relative and examined messages between the pair that made specific reference to the man’s involvement exceeding what would be required of a sperm donor.
The tone and content of the messages indicated they were embarking on a joint endeavour and there were numerous references to the children using the man’s surname, the judge said. Most compelling were messages from the woman saying: “I thought you would be such a nice man to be the dad”, and “We are both lucky that we found someone who wants the same thing”.
The judge said she has “no doubt” the man is a “committed parent” whose participation in the children’s lives will give them “considerable benefit”. The judge noted that the importance of a child’s identity is well recognised internationally.
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