Challenging normative constructions of parentage in Ireland

Abstract

Legal conceptions of the family have evolved considerably in recent years. Many legal systems now offer recognition to what are commonly termed ‘non-traditional’ families, namely those that fall outside of the ‘sexual family’ ideal. Such reforms are certainly encouraging but they may nonetheless be criticised on the basis that they promote a heteronormative construction of the family rather than providing an innovative new perspective on modern family relationships. Using recent Irish reforms as the basis for the discussion, this article will examine the normative approach to family recognition which has been adopted in both Ireland and England and Wales and it will question whether those legal systems adequately accommodate families which fall outside the normative ideal. Where failings are identified, suggestions are presented as to how the law could be modified so as to fully accommodate ‘non-traditional’ families, in particular gay and lesbian families.

Keywords:

• Parentage
• children
• family law
• LGBT

Acknowledgments

The author would like to thank Dr. Conor O’Mahony for his comments on an earlier version of this work. Any errors or omissions are the author’s own.

Notes

1. ‘Guardianship’ in Ireland is equivalent to the concept of ‘parental responsibility’ which is used in other jurisdictions.

2. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 came into force on January 1st 2011.

3. It should be noted that the Adoption (Amendment) Bill 2016 proposes to bring forward the relevant adoption provisions contained in the 2015 Act into the 2016 Bill.

4. It should be noted, however, that the 2015 Act does not make provision for second-parent adoption and so the legal parent is required to adopt the child jointly with the social parent.

5. Clarke J. concluded that, in the absence of legislation to the contrary, both the birth mother and the genetic mother were ‘entitled to be regarded as having some of the characteristics of a mother’ (M.R. and An tArd Chláraitheoir [2014] IESC 60, Judgment of Clarke J. at para. 9.9).

6. This may occur, for example, where non-clinical donor-assisted human reproduction is used. In this situation, the rules of parentage which are set out in the 2015 Act will not apply and so the child will not have any automatic legal relationship with the non-gestational intending parent upon birth.