A male friend of a lesbian couple who donated his sperm to one of them, resulting in the birth of a boy, is now seeking joint custody of the one-year-old child.
The two women, who have undergone a civil union ceremony in England, planned earlier this year to take the boy abroad for a year to a long-haul destination where his mother comes from. However, the man secured a High Court injunction under which they could take the child abroad only for six weeks and restraining them removing him again until the man's claims are decided.
The lesbian couple appealed that decision but the Supreme Court yesterday dismissed their appeal by a 2/1 majority.
Ms Justice Susan Denham and Mr Justice Joseph Finnegan agreed the injunction was in the best interests of the child's welfare at this stage, as a year was a long time in the life of a developing infant. Ms Justice Denham stressed that decision should not be inferred as presuming rights for the man. Those rights had yet to be decided.
She said it appeared both sides were acting in good faith and the court had to balance their interests. While the couple wished to relocate temporarily for a year, primarily so the child could get to know his mother's family, such contact had occurred when they spent six weeks in that country.
In his dissenting judgment, Mr Justice Nial Fennelly said the man's only relationship with the child was as "a sperm donor".
A written agreement between the sides stated the man had agreed to act as a sperm donor, agreed the child's parents were "X and Y [ names of the couple]" and had no financial obligations to the child, he noted.
The issue of whether a child's welfare would be best served by being reared by a same-sex couple, one of whom was his natural mother, or by a person whose only relationship with him was as a sperm donor, created "an entirely novel situation" for the courts here but the granting of the injunction was tantamount to deciding the issues, he believed.
The approach adopted by High Court judge Mr Justice Henry Abbott in the case so far (granting the injunction) meant the rights and relationship of the man to the child would be established as a "fait accompli" before there was a full hearing, said Mr Justice Fennelly.
While the mother had natural and constitutional rights from her relationship with the child, the judge also believed the man, as matters stand, had no legal and constitutional rights relating to the child as he was not a member of a family based on marriage to the mother.
Because he had no established relationship with the mother, he was in a different position from an unmarried father, the judge believed.
The case arose after the lesbian couple reached an agreement with the man under which he fathered a child with one of them by artificial insemination.
The agreement signed by the man and the couple in September 2005 said the child would know the man as his father and the man's role would be as "a favourite uncle".
