“Heteronormativity at Every Turn”: The Legal Recognition of Same-Sex Parents in Ireland

Abstract

Irish law allows for some LGBTQI + parents to be jointly recognized as legal parents of their children, but legal recognition is dependent on the mode of conception of the child and, as a result, many LGBTQI + parent families cannot secure full legal recognition of their families. Because these families fall outside of the legally recognized parenting pathways, limited empirical research has been conducted to understand their experiences. This article presents the findings of a survey that was conducted with 99 Irish LGBTQI + parents to investigate the nuances of, and legal difficulties faced by, the families in obtaining legal recognition of their family relationships. The article presents the findings of a bivariate descriptive analysis that was used to analyze the quantitative data and a thematic analysis used to examine the qualitative open-ended comments. The results serve to identify the difficulties experienced by respondents in obtaining legal recognition of their family relationships in Ireland. Following this analysis, the article considers how Irish law might better respond to the reality of these parenting arrangements.

Keywords:

• Law
• same-sex parenting
• Ireland
• donor conception
• surrogacy LGBTQI + parent families

Subject classification codes:

• same-sex parenting

Introduction

Speaking in 2010, Gráinne Healy, then Chairperson of Marriage Equality, noted that “[c]hildren living in same-sex headed families in Ireland have been consciously ignored, isolated and consigned to a legal vacuum, thus heightening their vulnerability, lessening their right to family security and, frankly, insulting them and their loving parents” (Marriage Equality, 2010, p. 7). Much has changed in the 12 years since this comment was made, with constitutional referenda and legislative developments providing much needed recognition and protection for LGBTQI + parent families in Ireland. Yet, as this article shows, many LGBTQI + parent families remain in a “legal vacuum” under Irish law as a result of the myopic and often tokenistic approach adopted by the legislature in introducing legal reforms.

This article presents the findings of an online survey that was conducted with LGBTQI + parents in Ireland to better understand their experiences of obtaining legal recognition of their family relationships. The research shows that, in a significant proportion of the LGBTQI + parent families captured by the research, the children of the family do not have a legal relationship with both of their parents. This creates practical and legal issues that can frustrate family life and impact negatively on both the parents and the children. However, outside of the Irish LGBTQI + community, there seems to be a lack of awareness or understanding of these issues. For example, the Irish State response provided to a questionnaire conducted by Tryfondiou and Wintemute suggested that Ireland “treat[s] the children of same-sex couples in the same way as the children of different sex couples for all legal purposes” (Tryfondiou & Wintemute, 2021, p. 76). This is simply not accurate as the children of same-sex couples are treated differently to the children of different-sex couples in a number of significant areas under Irish law by virtue of the presumption of paternity, which applies exclusively to married different-sex parents. The current article seeks to highlight the inequalities experienced by Irish LGBTQI + parent families, which, it seems, continue to be “consciously ignored” in the post-marriage equality society. This raises the question of whether same-sex marriage is truly equal to different-sex marriage in Irish law since same-sex married parents and their children are not afforded the same legal recognition as different-sex married couples and their children.

The survey that is the subject of this article invited responses from all members of the Irish LGBTQI + community who have children (whether or not they are legally recognized as parents). The experiences of these parents underline the diversity and normality of LGBTQI + parenting that has been noted by other authors (Diduck, 2007), but also confirm the limits of the legal imagination in accommodating families that fall outside of the “sexual family” construct (Bracken, 2022; Fineman, 1995).

Of course, this issue is not unique to Ireland (see ILGA-Europe, 2023). In the United Kingdom, Smith has commented that the law “perpetuates an exclusionary norm” by failing to recognize the diversity of LGBTQI + family formation (Smith, 2013, p. 375). In the United States, Bei-Wen Lee notes that “[w]hile the nationwide legalization of gay marriage has changed the legal landscape for gay couples, gay parents are still not assured equal recognition” (Bei-Wen Lee, 2017, p. 634). The absence of legal recognition for parent-child relationships in LGBTQI + parent families creates numerous practical difficulties related to areas such as decision-making, day-to-day care, inheritance rights, citizenship and other areas. The lack of legal recognition can also negatively affect psychological wellbeing and family functioning (American Psychological Association, 2020) although empirical research on this topic is limited (Siegel et al., 2021, p. 2). Still, Siegel et al’s systematic review of 55 studies published between 1999 and 2020 found that “legal vulnerability increases the risk for all family members of experiencing or expecting adverse outcomes in health- and family-related domains” (Siegel et al., 2021, p. 19). Based on the review, the authors deduced that “a legally secure family structure is in the best interest of all family members” (Siegel et al., 2021, p. 19). As this article will demonstrate, many Irish LGBTQI + parent families do not enjoy such legal security.

For context, the article begins with a brief history of Ireland’s recognition of LGBTQI + parenting, before outlining the findings of the survey. Thereafter, the article considers the how Irish law might better respond to the reality of LGBTQI + parenting by “[a]cknowledging both difference and equivocation” (Diduck, 2007, p. 480) in the decisions made by these parents when building their families.

At the outset, it should also be noted that while this article uses the term LGBTQI + to refer to the parents who participated in the survey (as participation was open to anyone who identified with this term), the analysis focuses on the experiences of cis same-gender couples. The reason for this is two-fold: 1. As discussed in the following sections, while some transgender respondents engaged with the survey, the numbers were low and so to avoid unintentionally identifying any respondent, their responses are not separately reported and 2. Under Irish law, for the most part, the issues that arise for transgender parents do not arise because they are transgender but are instead connected to the mode of conception of the child and the specific statutory regulation (or lack of regulation) that exists in respect of that pathway to parentage (Bracken, 2022).

Legal background to LGBTQI + parenting in Ireland

Until relatively recently, Ireland “generally tended to be conservative on social (particularly socio-sexual) issues” (Ryan, 2018, p. 59). Consensual sexual acts between adult males were criminalized until 1993; divorce was not available until 1996; and, prior to 2015, Irish law provided limited recognition to LGBTQI + parenting arrangements. Before 2015, a single gay or lesbian person could be recognized as the legal parent of their biological or adoptive child, but there was no opportunity for the same-sex partner of that parent to be legally recognized as a parent. The introduction of civil partnerships for same-sex couples in 2010 offered the couples an opportunity for formal recognition of their relationships but did little to improve the situation for LGBTQI + parents (Marriage Equality, 2011). This was despite the fact that the civil partnership legislation largely copied and pasted from existing family law provisions that applied to (different-sex) marriage. While the drafters of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the “2010 Act”) were content to copy across the protections applicable to the adult civil partners, they drew a red line through almost every mention of children and parenting. This led the Ombudsman for Children to note prior to the enactment of the legislation that:

[t]he parameters of disadvantage are thus marked out clearly by the very legislation from which the provisions of the Civil Partnership Bill have been derived. Moreover, it is clear that the references to the needs of dependent children were removed deliberately (Ombudsman for Children, 2010, pp. 6–7).

The 2010 Act created a situation whereby the children of civil partners were treated differently to the children of married couples in a range of areas including family home protection, maintenance, succession rights, divorce/dissolution, guardianship and custody (Marriage Equality, 2011). Since civil partnership was only available to same-sex couples, and marriage (at that time) was only available to different-sex couples, this differential treatment was felt exclusively by the children of same-sex couples, who were left in a more vulnerable legal position than their marital counterparts.

In 2010, the same year that the civil partnership legislation was enacted, the Voices of Children Report (Elliott, 2010) highlighted the issues faced by children raised by same-sex couples in Ireland at that time. The participants in this research were comprised of 11 adult children of same-sex couples who were aged between 19 and 24 years old. These participants offered a unique perspective on the Irish family as they were “the first generation of children reared in an Ireland following the decriminalization of homosexuality (1993) and the introduction of divorce (1995)” (Elliott, 2010, p. 16). Notwithstanding the liberalization of social attitudes that occurred during the period of their childhood and upbringing, the participants noted that there remained a “pervasive and persistent conservatism of Irish society” (Elliott, 2010, p. 16). The participants detailed how the lack of legal recognition for their families impacted on them in a range of areas such as health, education, and inheritance. There were “also references to the ways in which the State made their families invisible, for example in the Census” (Elliott, 2010, p. 16). The participants opined that legal recognition of their family relationships was necessary to tackle this conservatism and to address the legal disadvantages experienced by their families. As was stated in the Report, “[l]egal recognition would both provide protection: ‘you can’t really mess with the law’, as well as unequivocally establish socially and legally recognized sibling and parental relationships” (Elliott, 2010, p. 9).

The need for legal reform to recognize LGBTQI + parent families was also a common thread in research conducted by Pillinger and Fagan in 2013 (Pillinger & Fagan, 2013). In this study, the authors found “an overwhelming concern” among Irish LGBTQI + parents and prospective parents “about the lack of legal recognition given to LGBT parenthood and to the difficulties arising from the consistent failure of governments to approach the issue of LGBT families from a ‘child centred’ perspective” (Pillinger & Fagan, 2013, pp. ix–x). The “top-ranking legal change” that participants in the 2013 research felt was needed to improve the lives of LGBTQI + people was access to civil marriage. It was felt that access to civil marriage would provide “widespread protection to both LGBT parents and their children, including adoption rights for non-biological parents” (Pillinger & Fagan, 2013, p. 106). The “top ranking other change” identified by respondents was “for government policies & state services to reflect the diversity of family life” (Pillinger & Fagan, 2013, p. 106). At the time that the research was conducted, there was limited recognition of families that fell outside of the heteronormative, two-parent model, which negatively affected the majority of respondents.

In 2015, Ireland became the first country in the world to secure marriage equality by popular vote (for discussion, see Tobin, 2016). As a result of the marriage equality referendum, a new Article 41.4 was inserted into the Irish Constitution to provide that “[m]arriage may be contracted in accordance with law by two persons without distinction as to their sex” (Constitution of Ireland, Article 41.4). This provision was subsequently given legislative effect through the Marriage Act 2015. The opening up of marriage to same-sex couples also provided access to some joint parenting rights for the first time under Irish law. For example, prior to the enactment of the Adoption (Amendment) Act 2017, only married couples or single persons were eligible to apply to adopt in Ireland. Marriage equality meant that same-sex married couples could access adoption on the same basis as married different-sex couples. The introduction of marriage equality also meant that a married same-sex couple enjoyed protection, for the first time, as a constitutionally protected family for the purpose of Articles 41 and 42 of the Irish Constitution (Tobin, 2016).

Yet, outside of adoption and recognition for the purpose of Articles 41 and 42 of the Constitution, marriage equality had limited practical impact on the legal protections afforded to LGBTQI + parent families. This is apparent from the findings of the survey that are outlined in the following section. Moreover, as discussed later in this article, same-sex marriage is not equal to different-sex marriage when it comes to children due to the operation of the presumption of paternity: whereas this presumption applies in respect of the husband of a different-sex marriage, there is no equivalent presumption of parentage in the case of a married same-sex couple (Bracken, 2017). This can result in situations whereby legal parentage is allocated differently in otherwise identical situations (for example non-clinical donor conception) depending on whether the married parents are of the same or different sex (Bracken, 2020, p. 188). Hence, when it comes to children, marriage equality has not secured equality for all.

The Children and Family Relationships Act 2015 (“the 2015 Act”) has been of far greater significance to LGBTQI + parent families in the context of parenting than marriage equality has been. The 2015 Act recognized a number of “new” and “non-traditional” pathways to parenting for the first time under Irish law and was the first statute to allow for two women to be jointly recognized as the legal parents of a child from the time of the birth. Among other things, the 2015 Act provides for the regulation of “donor-assisted human reproduction” (DAHR) and includes a mechanism (in sections 20-22) to facilitate the recognition of legal parentage in certain circumstances where the child was conceived through DAHR that occurred prior to commencement of the legislation. This provision has proved to be significant for many LGBTQI + parent families since, following the enactment of the 2015 Act, there was subsequently a five-year delay in commencing the DAHR provisions, which meant that they did not become operative until 4 May 2020 (see Children and Family Relationships Act 2015 (Parts 2 and 3) (Commencement) Order 2019 (S.I. No. 541 of 2019)). Children born prior to commencement of the DAHR provisions were subject to same rules of parentage that apply to any other conception such that, where a child was born to a female couple, the birth mother was regarded as the legal mother but the “other” female intended parent was not recognized as a legal parent at the time of the birth. The 2015 Act makes provision for such a parent to apply retrospectively for a declaration of parentage recognizing them as a legal parent but, as shown in the following section, many parents fall outside of the restrictive eligibility criteria for such an application. Moreover, it should be noted that while this mechanism is commonly referred to as the “retrospective” declaration of parentage (Bracken, 2020), the order is only effective from the date of the declaration and is not backdated to the date of the birth of the child (Children and Family Relationships Act 2015, section 23).

Undoubtedly, the 2015 Act has improved the legal standing of many LGBTQI + parent families. However, many other families fall outside of its parentage provisions. In particular, it is notable that only female same-sex couples can be jointly recognized as parents under this legislation; male same-sex couples who engage in surrogacy cannot avail of its provisions. In fact, there is no specific regulation of surrogacy in Ireland that would enable two intended parents to be recognized as joint legal parents of their child who is born through surrogacy. Instead, where a child is born through surrogacy to Irish intended parents, whether at home or abroad, Irish law will recognize the surrogate as the legal mother and the genetically-related father as the legal father with no opportunity for any other parent to be legally recognized (Bracken, 2020). Other omissions from the 2015 Act concern DAHR that is undertaken outside of Ireland; DAHR undertaken in Ireland where the child is subsequently born abroad; non-clinical or “at home” DAHR procedures; and “retrospective” DAHR procedures where a known donor was used (LGBT Ireland, 2018). Where a child is born to a female couple using any of these omitted pathways to parentage, the “other” female parent (who does not give birth to the child) has no opportunity to be recognized as a legal parent. The lacunae in the current laws have led to calls for reform in recent years (Equality for Children, 2022; LGBT Ireland, 2018) as well as the emergence of a number of stakeholder groups to advocate for legal change. Notably, as the research presented in the following section shows, many of the same issues identified in Pillinger and Fagan’s (2013) research still arise today notwithstanding the marriage equality referendum and the progressive societal shift that has occurred in Ireland over the past decade.

Materials and Methods

In 2021, a research project on LGBTI + Parent Families in Ireland: Legal Recognition of Parent-Child Relationships was undertaken to better understand the experiences of LGBTQI + parent families in obtaining legal recognition of their family relationships in Ireland. The research was conducted by the author in partnership with LGBT Ireland, an Irish support service for Lesbian, Gay, Bisexual, and Transgender people and their families and friends. The research was funded by the Irish Research Council New Foundations Scheme 2020.

The empirical research undertaken as part of this research project built on previous doctrinal research that had highlighted the gaps in the law, as outlined in the previous section, and socio-legal research, which is an approach that draws on the social sciences in order “to understand legal phenomena and the role of law in society” (McCrudden, 2006, p. 637). The previous research (Bracken, 2020; LGBT Ireland, 2018) uncovered a dearth of contemporary empirical data relating to the experiences of Irish LGBTQI + parent families in respect of legal recognition of their family relationships. To address this paucity of knowledge, new empirical research was deemed necessary to investigate the practical legal difficulties faced by LGBTQI + parent families in this area. The aim of the empirical research was to understand how legal “institutions, rules, procedures, and personnel…operate and what effects they have” (Baldwin & Davis, 2003, cited in Lammasniemi, 2018, p. 84) in the context of LGBTQI + parenting in Ireland. In pursuing this objective, it was important at the outset to acknowledge that often the law is “the symptom not the cause” of social phenomena (McCrudden, 2006, p. 646). In family law, this is particularly evident as laws are shaped to reflect what society thinks a family should look like (Bracken, 2022). But sometimes law is both symptomatic and causal, reflecting social mores and creating the practical issue that is under consideration. In the context of LGBTQI + parenting, the hypothesis from the doctrinal and socio-legal research was that Irish law has evolved in line with social attitudes but, as currently crafted, the law itself impedes the legal recognition of many families. The empirical research detailed in this section was devised to investigate this.

Methodology

Data collection for the empirical research took the form of an anonymous online survey. Prior to engaging in the data collection, ethical approval for the research was obtained from the Arts, Humanities and Social Sciences Research Ethics Committee at the University of Limerick (reference: 2021-03-18-AHSS). An information letter was displayed on the landing page of the survey to provide respondents with further details about the research and how the data from the survey would be used. Respondents were required to specifically indicate their consent to participation in the survey and for their data to be used in order to move past the landing page.

Most of the survey questions had fixed response options such that the research was primarily quantitative in nature, but a small number of open-ended questions were included making it possible to collect some qualitative data in addition to the quantitative data. The use of both fixed response and open-ended questions in the survey meant that the same phenomenon could be assessed in different ways. While the fixed response questions provided answers to pre-determined areas, the open-ended questions were designed to allow participants to answer the question using their own words (Edwards & Dardis, 2014). In this way, the qualitative responses added important contextual information to the closed-ended, quantitative survey responses.

The survey questions were designed in collaboration with the partner organization, LGBT Ireland. Sample questions were circulated to a small number of LGBTQI + parents for feedback on content and wording and revisions were made accordingly. Logic flow rules were incorporated into the survey design such that some questions were only displayed to participants where a previous question was answered in a particular way thereby ensuring that all questions presented to participants were of relevance to them, for example in respect of the pathway to parenting that was adopted. This meant that while there was a total of 69 questions in the survey, no participant was shown or asked to answer all questions. Other than the initial question regarding consent to participation in the survey, there were no mandatory questions. As a result, some participants chose not to answer certain questions, which meant that the total responses to each question differed. All responses to the survey were anonymous.

Bivariate descriptive analysis was used to analyze the quantitative data. This approach aimed to “explore the similarities and differences between scores for two variables; and to identify the association between two variables” (Hong Chui, 2007, p. 62). For example, this approach was used to compare the responses of parents with and without a legally recognized parental status and those who had engaged in different pathways to parentage. The analysis was conducted using the filter/compare rules in Qualtrics, the online system used for the data collection.

Thematic analysis was used to derive general themes or patterns from the qualitative data collected from the open-ended question responses. Using Braun and Clarke’s framework for thematic analysis, six phases of analysis were employed: familiarizing oneself with the data; generating initial codes; searching for themes; reviewing themes; defining and naming themes; and producing the report of the analysis (Braun & Clarke, 2006). Quotations that are representative of the identified themes are included in the Results and Discussion section.

Participants

The target population for the research was parents who identify as LGBTQI+. The survey did not define the terms “LGBTQI+” or “parent” allowing prospective respondents to self-determine their eligibility to participate. The survey included questions on gender and sexual orientation but there was also a “prefer not to say” option. In answering the demographic questions, none of the respondents indicated that either they or their spouse/partner identify as transgender or as having a transgender history. However, in the open-ended comment boxes, it became clear that some respondents did in fact fall into this category. Due to the very small number of responses of this nature, the responses in this category are not separately analyzed in the current article to ensure that no identifying information is inadvertently revealed.

In total, there were 99 complete survey responses that form the basis of the analysis that is set out in subsequent sections. The survey asked that families complete the survey once (one parent answering on behalf of the other parent or parents) unless this would not accurately describe the nature of their family. Hence, while there were 99 complete survey responses, it is estimated that the survey captured the views of 195 parents parenting approximately 170 children. Ireland’s 2016 Census (the most recent available data at the time of writing) indicated that there were 591 same-sex couples with children in Ireland in that year (Central Statistics Office, 2016). In this way, the current research does not represent the views or experiences of all Irish LGBTQI + parents. Rather, the research identifies common legal issues that are experienced by some LGBTQI + parent families in obtaining legal recognition of their family relationships.

Of the 99 respondents, 78 identified as female and 21 identified as male. No respondent identified as non-binary but a small number (n = less than 5) indicated that their current partner/spouse identifies as non-binary. In terms of sexual orientation, 64% of respondents identified as gay woman/lesbian; 17% as gay man; 12% as bi/bisexual; 1% as asexual; 3% as “other”; and 3% selected “prefer not to say.”

Over half of respondents (51.5%) stated that they live in Dublin, Ireland’s capital city with the other participants living in various other locations throughout the country. 80% of respondents indicated that they live in an urban setting. Most respondents (60%) fell into the 36—45 year old age range and most (69%) were married. Most respondents stated that they had either one (47%) or two (40%) children, but some respondents had more. The question seeking this information was written in a broad manner to include the statement “This question applies to all individuals who consider themselves to be parents, regardless of the legal status of this position. Please answer this question in whatever way instinctively makes sense to you.” Hence, the question was open to both legally-recognized and non-legally recognized parents. The ages of children varied between families: 17% of respondents stated that one or more of their child(ren) were aged 0-12 months; 15% stated that that one or more of their child(ren) were aged 12-23 months; 30% stated that one or more of their child(ren) were between 2—5 years; 16% stated that one or more of their child(ren) were between 5-10 years; 15% stated that one or more of their child(ren) were between 10-17 years; and 7% stated that one or more of their child(ren) were over 18 years.

In terms of the pathways to parenting adopted by the respondents to create their families, donor-assisted human reproduction (DAHR) was the most common pathway to parenting used by respondents (67%) followed by surrogacy (13%); and adoption (10%). 10% of respondents did not specify their pathway to parenting. The following sections focus on the responses of parents who had engaged in donor-assisted human reproduction (DAHR) and surrogacy.

Results and discussion

A central finding from the research related to legal parental status, that is who are the legal parents of the children of the family. Most respondents (65%) said that they are a legal parent of all of their children and, of the respondents who indicated that they share parenting with a current/former spouse/partner, most (71%) indicated that the current/former spouse/partner is legally recognized as a parent of all children. However, only 47% of respondents indicated that both they and their spouse/partner are a legal parent of all of their children. Thus, in 53% of the families captured by the survey, all children do not have a legal relationship with both of their parents. This indicates that a significant proportion of LGBTQI + parent families are not fully recognized under Irish law.

It is also clear from the findings of the survey that marriage equality, in and of itself, has not improved the position of the LGBTQI + parent families. 69% of the respondents to the research were married (first marriage or re-married) and yet only 50% of these married parents were jointly recognized as legal parents with their spouse.

The impact of marriage equality was a core theme in the thematic analysis of the open-ended survey questions. A number of respondents commented negatively on the impact (or rather the lack thereof) of marriage equality as regards legal parenting rights. For example, one mother who was not legally recognized as the parent of her donor-conceived child felt that the law “is unfair, discriminatory and not what people thought they were voting for with Marriage Equality.” Another parent noted the unequal application of laws, commenting:

Basic rights don’t apply to all in 2021 Ireland. All citizens treated equally, I think not. Herero families undertaking surrogacy are seen as “more legitimate” and are likely the ones to change the law on surrogacy. Which is deeply disappointing for a country who overwhelmingly voted for equal marriage.

The parenting inequalities attached to marriage equality are discussed further in the final section of this article.

Donor-assisted human reproduction

Donor-assisted human reproduction (DAHR) was the most common pathway to parenting used by respondents to the survey, representing 67% of all responses. All of the DAHR parents identified as female. Most of these respondents indicated that they are parenting their children with a current spouse/partner (94%) and that that current spouse/partner identifies as female (97%). For the purpose of the survey, DAHR was defined as a procedure “with the objective of it resulting in the implantation of an embryo in the womb of the woman on whose request the procedure is performed where either one or both gametes (sperm/egg) or the embryo is provided by a donor.” This definition aligns with the legal definition of DAHR in section 4 of the Children and Family Relationships Act 2015 but is slightly broader as it was intended to capture DAHR that is/was conducted outside of Ireland. As discussed later, section 4 of the 2015 Act specifies that a DAHR procedure is one that is “performed in the State” and a “donor conceived child” is defined as a child “born in the State”. Hence, the legal parentage flowing from procedures that take place outside of Ireland is only recognized in specified limited situations under sections 20-22 and only where the child was conceived prior to commencement of Parts 2 and 3 of the 2015 Act (which occurred on 4 May 2020).

Leaving aside the distinction between procedures that take place in Ireland and abroad, one might assume that the majority of couples who engage in DAHR would be legally recognized as parents since the 2015 Act makes specific provision for such recognition. However, in the current research only 50% of the DAHR parent respondents indicated that both they and their partner are legal parents of all of their children. Hence, only half of the families captured by the research where DAHR was used had benefited from the provisions of the 2015 Act with the other half falling outside of the legislative framework, rendering them unable to secure full legal recognition of parent-child relationships. This indicates that the current legislation is largely out of step with the reality of DAHR approaches that are undertaken by female same-sex parents in Ireland.

The research identified a number of areas where families fall outside of the 2015 Act due to the nature of the DAHR procedure that was undertaken. This finding confirms the conclusions of the earlier doctrinal research, namely that where a female same-sex couple has engaged in a DAHR procedure in another country; outside of a clinical setting; or with the use of a known donor prior to 4 May 2020, the second female (non-birth) parent is not recognised as a legal parent under the 2015 Act (Bracken, 2020). There was some indication in the survey data that the 2015 Act has influenced the reproductive choices of some respondents as they intentionally engaged in a form of DAHR that would meet the legislative criteria for recognition. For example, as noted above, the 2015 Act defines a DAHR procedure as one that is “performed in the State.” Thus, since 4 May 2020, the legal parentage provisions that allow for two women to be recognized as legal parents only apply where the procedure takes place in Ireland. In the current research, all of the respondents who engaged in DAHR after 4 May 2020 had undergone the DAHR procedure in Ireland. By contrast, 31% of respondents who had a child through DAHR prior to 4 May 2020 had engaged in DAHR abroad. This suggests that parents engaging in DAHR since commencement of Parts 2 and 3 of the 2015 Act are doing so in ways that conform to the legislative requirements.

However, the research also found that some prospective parents consciously rejected the idea of conforming their fertility plans to the criteria in the 2015 Act. The survey included a question that asked parents who were planning to have another child through DAHR in the future to describe the nature of the intended conception. Of the respondents who indicated that they were planning to have another child, 34% were planning to engage in a procedure that would not be recognized under the 2015 Act: 19% planned to engage in a DAHR procedure outside of Ireland; 6% intended to use an unknown or anonymous gamete donor; and 9% stated that they would engage in a non-clinical/at-home procedure. All of these forms of DAHR fall outside of the 2015 Act such that, if the parents engage in them and a child is born, the “default” rules of parentage would apply to recognize the birth mother as the legal mother (as confirmed in the case of MR v An tArd Chláraitheoir [2014] 3 IR 533) and the sperm donor as the legal father (Status of Children Act 1987, s 38, as amended). The second female parent would not be recognized as a legal parent under Irish law. This finding dilutes the contention that the 2015 Act has served to shape female parents’ decisions in respect of the method of conception in the field of DAHR. Of course, it might be that the respondents planning to engage in a future DAHR procedure that would not be recognized under the 2015 Act simply did not know that this was the case and might change their planned behavior after legal advice is sought. It is notable, however, that 56% of the parents who had a child through DAHR felt that they were either “extremely” or “very” familiar with the laws in the area and no respondent in this category stated that they were “not familiar” with the laws. Thus, the intention to engage in a conception that falls outside of the 2015 Act appears to be largely well informed and not the product of incomplete legal knowledge. At the same time, thematic analysis of the qualitative comments underlined the anxiety experienced by many DAHR parents planning a future conception who felt conflicted between choosing a pathway to parenting best suited to their family and choosing a pathway that would be recognized under the Irish legislation.

Surrogacy

13% of total respondents to the survey indicated that one or more of their children were born through surrogacy. In total, these respondents were parenting 21 surrogate-born children. All of the surrogacy parent respondents identified as male, parenting with a current or former partner who also identifies as male.

At present, there are no specific laws in Ireland to regulate surrogacy. As a result, there is no mechanism to enable two men to be recognized as joint legal parents of a child born through surrogacy even if they are named as joint legal parents on a foreign birth certificate. Hence, none of the surrogacy respondents to the present survey were jointly recognized as a legal parent alongside their spouse/partner; instead only one member of the couple was legally recognized as the parent of each child.

The majority of the respondents (92%) who had a child through surrogacy had engaged in the surrogacy arrangement outside of Ireland, which is unsurprising given the absence of a domestic legal framework for the process. Of the respondents who specified the country where the surrogacy took place, 45% had engaged in surrogacy in Canada, 36% in the United Kingdom and 18% in the United States of America.

Thematic analysis of the qualitative comments made by the surrogacy respondents identified a desire for legal reform and issues pertaining to the cost of the legal processes associated with surrogacy as the most common themes in the written responses. Respondents felt that the law should be amended to enable two men to be registered on their child’s birth certificate following the surrogacy arrangement and commented on the current costs of establishing legal parentage for the genetically-related intended father. According to one respondent when commenting on legal reform, “Whatever arrangement is made, I think it is important to be legally affordable, simple, accessible and legally light.”

Negative Attitudes and Administrative Obstacles

Overall, the majority of respondents to the survey (54%) felt that Irish society in general is “probably” accepting of LGBTQI + parents. Among the DAHR parent respondents, 53% answered “probably yes” to this question while 62% of the parents through surrogacy answered this way, notwithstanding the absence of any laws to recognize the latter as joint legal parents with their spouse/partner. 38% of the surrogacy parents indicated that they had experienced some form of discrimination as a parent because they identify as LGBTQI + compared to 41% of the DAHR parent respondents (legal and non-legal parents). Among the DAHR parent respondents who were legally recognized as parents, 41% stated that they had experienced such discrimination, while 50% of the DAHR parents who were not legally recognized as parents stated that they had experienced discrimination of this nature.

Where they felt comfortable doing so, respondents who stated that they had experienced discrimination were invited to describe the nature of the discrimination in an open-ended comment box. Thematic analysis of the comments identified three common themes in the responses: heteronormativity and homophobia in administrative systems; issues pertaining to the provision of medical consent; and negative attitudes from service providers. Selected quotes that are illustrative of the themes are set out below.

On administrative systems, one father through surrogacy observed that the “[s]ystem [is] set up for ‘mothers’ to do child parenting. Lots of questions about ‘No Mother?’ All forms are ‘Mother’…. you are required to complete different forms and continuously explain ‘how’ you are a parent…” Another respondent felt that they had experienced “heteronormativity at every turn” when trying to obtain a passport for their child, while another commented on a constant need “to find work arounds to get basic services.”

The practical impact that an absence of legal parentage has on daily life was also apparent from the comments pertaining to medical consent. For example, one non-legal parent noted that they were “unable to sign hospital paperwork to consent to surgeries/scan/medical procedures etc” for a child with serious medical issues. Another respondent recalled how they were unable “to sign a form in crèche for my son when he had an accident” because they are not a legal parent.

The thematic analysis also pointed to negative interactions with healthcare professionals. For example, one female parent who was not recognized as a legal parent was told that only the “real mum” could access medical care on behalf of the child, while another female parent who gestated the pregnancy was addressed as the “real mother” by medical professionals. Another female parent recalled a “horrible experience” whereby a nurse questioned her as to the name of the child’s father. The experience was compounded by COVID 19 hospital restrictions, which meant that her female partner was not allowed to attend the hospital appointment with her. However, it is clear that these experiences were not attributable to COVID 19 alone as earlier research has shown comparable findings. For example, in the 2010 Voices of Children Report (Elliott, 2010), the participants highlighted similar experiences whereby they experienced negative attitudes toward same-sex parenting in public spaces. Interactions with health services were often negative as service providers “failed to recognize the family status of children and parents within LGBT families” (Elliott, 2010, p. 19). Indeed, it is telling that the participants “discussed only negative experiences of the health system” (Elliott, 2010, p. 19). It is notable, therefore, that same-sex parents continue to have negative experiences in healthcare settings over 10 years after this research was conducted. The current findings further highlight the need for legal changes to recognize both parents as legal parents regardless of the pathway to parenting that is adopted. The experiences of the respondents also suggest that broader societal change is needed to accommodate all families.

How can the law accommodate the diverse pathways to parenting undertaken by same-sex couples?

The findings of the current research indicate that LGBTQI + parent families are diverse and that same-sex couples adopt multiple pathways to parenting to create their families. They are “as diverse as heterosexual parent families and are no less ‘normal’ for being so” (Diduck, 2007, p. 460). Yet, Irish law is premised on a narrow vision of family formation that fails to appreciate the different ways in which LGBTQI + parents create their families. The unique construct of LGBTQI + parent families makes it difficult to apply a formal equality lens to address the issues noted in the previous sections since LGBTQI + parent families “simultaneously challenge and support” traditional ideas of the family (Diduck, 2007, p. 460). This section considers how the law might best accommodate the diverse pathways to parenting undertaken by LGBTQI + parents.

Early research on LGBTQI + parent families suggested that many families adopted “normalising” strategies as a reaction to the social stigma that they experienced or anticipated—emphasizing the “ordinariness” of their families was thought to reduce the potential for “othering” and stigma due to difference (Pralat, 2018). More recent research has found that, over time, parenthood itself has become the marker of “ordinariness”, serving to “normalise” LGBTQI + parenting and “making the unfamiliar familiar” (Nordqvist, 2015, p. 496). In this way, LGBTQI + parent families are “just like other families” (Diduck, 2007, p. 472). However, the pathways to parenting that are adopted by LGBTQI + parents do differ in significant ways to those adopted by other parents as they are often “organised along lines and ideals which differ from traditional heterosexual parenting practices and do not fit into the frameworks established for recognizing them” (Smith, 2013, p. 359). For example, as noted by Smith, “[t]he decision of some lesbian parents to include a known donor in their parenting arrangements shuns the exclusivity of the dyadic parenting model that is based on heterosexual reproduction” (Smith, 2013, p. 360). In this way, LGBTQI + parenting is disruptive and has the potential to “revolutionise the norm” in terms of the legal recognition of parenting and family relationships (Diduck, 2007, p. 477).

For these reasons, formal equality, the idea that like cases should be treated alike, is often insufficient to address the issues experienced by LGBTQI + parents and “reduces rather than enhances this disruptive potential” of LGBTQI + parenthood (Diduck, 2007, p. 477). As Diduck notes:

while justice demands some form of equality between lesbian parent families and heterosexual parent families, it is not formal equality or sameness of treatment that is required. It is a more nuanced or contextualised form of equality that sees the “unusual context” of the case as fundamental to it, rather than as a distraction (Diduck, 2007, p. 472).

Similarly, Smith argues that “validating lesbian parenting means going beyond providing recognition on equal terms with heterosexual parents and making space for their differences to ‘reflexively transform’ the legal framework for recognizing parents” (Smith, 2013, p. 356). Indeed, both Smith (2013) and Diduck (2007) argue that legal provisions that assimilate LGBTQI + parent families to traditional norms fail to “capitalise” on the novel form of those families, opining that valuable insights can be gleaned from relationships that eschew the gendered baggage of cis-gendered heterosexual parenting. Research has consistently shown that children raised by same-sex parents have broadly the same outcomes as those raised by different-sex parents (American Academy of Pediatrics, 2003; Biblarz & Stacey, 2010; Golombok, 2015) and some research suggests that certain outcomes may be better in LGBTQI + parent families when compared to cis-gender different-sex families (Crowl et al., 2008; Fedewa et al., 2015; Suárez et al., 2023).

In Ireland, the legislature has failed to appreciate the nuances of LGBTQI + parenting. As discussed above, the Children and Family Relationships Act 2015 narrowly defines the concept of “donor assisted human reproduction” in a way that seeks to constrain the reproductive choices available to parents who engage in this process. Moreover, recent attempts to legislate for surrogacy in the Health (Assisted Human Reproduction) Bill 2022 have followed a similarly restrictive approach that, if enacted, would exclude many families from engaging in a legally recognized surrogacy framework (Bracken, 2022). In both cases, failure to adhere to the specific criteria contained in the legislation means that the conception will fall outside of the parentage provisions and one parent will not be recognized as a legal parent. Thus, both the 2015 Act and the 2022 Bill (if enacted in its current form) perpetuate “law’s channeling function”, which has been seen in other countries “whereby incentives and disincentives are produced in order that same-sex couples choose formal arrangements over informal ones” (Wallbank, 2010, p. 355). In doing so, the law dictates and restricts the form of family relationships that can be created through the legally sanctioned route. It produces an “assimilationist” approach (Fenton-Glynn, 2020) whereby all families are required to engage in the same form of DAHR or surrogacy in order to access the legal parentage provisions (Bracken, 2022).

In respect of DAHR, it should also be noted that while the provisions of the 2015 Act apply equally to both different-sex couples and same-sex couples, the effect is not always equal because other legislation gives certain different-sex couples the ability to circumvent the 2015 Act’s parentage provisions via the marital presumption of paternity. Section 46 of the Status of Children Act 1987 provides that where a woman give birth to a child during a subsisting marriage or within 10 months of the end of the marriage, “the husband of the marriage shall be presumed to be the father of the child unless the contrary is proved on the balance of probabilities.” The “contrary” can be established and the presumption rebutted where the woman was living apart from her husband for more than 10 months at the time that the child is born (section 46(1), as amended) or where it is shown that the purported father is not genetically related to the child (section 38, as amended). There is, however, no equivalent provision in Irish law for the “wife” or indeed simply a “spouse” of a marriage to be presumed to be a legal parent. Indeed, it is notable that the provision governing the presumption of paternity in favor of the husband of a marriage was not amended by the Marriage Act 2015, which was introduced to allow for marriages between persons of the same sex, the inference being that the legislature deliberately chose not to extend an equivalent presumption of parentage to same-sex marriages.

Some authors support the idea of extending a presumption of parentage to same-sex couples in order to equalize the position of same-sex and different-sex parents. For example, it has been argued that “there are strong arguments that such presumptions are in fact highly beneficial to children because, for example, children benefit from greater certainty, more clearly defined familial ties and the lesser likelihood of conflict between biological and social parents” (Boyd, 2007, cited in Millbank, 2008). The present author has noted that a presumption of parentage for same-sex couples “certainly looks advantageous as it ensures that all children conceived by assisted reproduction have a legal relationship with both intended parents at birth” (Bracken, 2020, p. 189). However, writing in the context of protecting children’s rights in respect of non-clinical donor conception, the present author has noted that:

A difficulty with applying a presumption of parentage to all committed couples is that it does not specifically address the rights of the child and there is a danger that the child’s right to identity and ability to access information about his or her genetic origins could be compromised in this system as there is no incentive for the parents to take steps to protect those rights (Bracken, 2020, p. 189).

Diduck is also critical of the extension of the presumption of parentage to same-sex couples, noting that such an approach “instantiates rather than challenges hetero normativity and ‘nature’. It both biologises and heterosexes ‘parent’ by ascribing that status on the basis of a person forming an exclusive sexual link with the biological parent” (Diduck, 2007, p. 467).

It must also be noted that the presumption of parentage in its current form could never apply to male same-sex couples even if the members of the couple are married to one another. This is because the presumption is premised on the presumed father’s marriage to the woman who gives birth to the child. In the case of the married male couple, neither of them will be married to the surrogate who gives birth to the child and so the presumption would not arise unless the marriage (to the gestational parent) requirement is removed from the test and replaced with an approach whereby any child born to a married couple is presumed to be the child of both spouses. However, in order for this approach to work in the context of surrogacy, it would require the law to be framed in such a way as to regard both intended parents as legal parents at the time of the child’s birth, which is not the case in many countries that regulate surrogacy nor is it universally favored as a framework for the allocation of parentage in surrogacy (for example, on the one hand see UN Special Rapporteur, 2018 and on the other Bracken, 2020).

Perhaps then, it is not appropriate to extend the presumption of parentage to same-sex couples but to abolish it for all couples thereby achieving “like for like” formal equality. After all, as Justice O’Donnell stated in the Irish Supreme Court case of MR and DR v An tArd Chláraitheoir [2014] 3 IR 533:

Concepts such as presumptions whether rebuttable or irrebuttable, and phrases and maxims may often be very useful to lawyers since they express reasonably precisely concepts which are well understood and in that way, as helpful shortcuts, may assist reasoning. However, if not properly deployed, at times they can deflect from, rather than assist reasoning (MR and DR v An tArd Chláraitheoir [2014] 3 IR 533, para. 234).

Abolishing the presumption of paternity in favor of married different-sex couples would certainly achieve the aim of “equality” between married different-sex and married same-sex couples but it would be of little practical assistance to the families affected by the gaps in legal recognition highlighted in the empirical research. As such, it is suggested that “a more nuanced or contextualized form of equality” (Diduck, 2007, p. 472) is required whereby more creative and bespoke processes are devised to recognize parent-child relationships and to address the gaps identified. It is beyond of the scope of the current article to identify each specific legal reform that would be required to address the legal lacunae, but it is clear that the current narrow understanding of DAHR in the 2015 Act needs to be amended and expanded in order to accommodate the different types of DAHR that are availed of by female same-sex couples in reality and surrogacy legislation needs to be enacted in order to recognize parents who engage in that process.

As it currently stands, it could be said that the marital presumption of paternity and absence of an equivalent presumption of parentage for married same-sex couples represents the final barrier to legal equality for LGBTQI + parent families in Ireland. The operation of this presumption means that married different-sex couples who have children are provided with opportunities to be recognized as joint legal parents that are not extended to married same-sex couples (Bracken, 2020, p. 188). In this way, consideration of the presumption uncovers a myth as regards marriage equality—while same-sex couples can access civil marriage on the same basis as different-sex couples, same-sex marriage is not equal to different-sex marriage when it comes to parenting and children. To ensure that there is no unjustified differential legal treatment between otherwise identically placed parents and children, it is submitted that specific legal reforms to accommodate the diversity of LGBTQI + parenting are needed to bridge the current divide.

Conclusion

Marriage equality was achieved in Ireland in 2015. For many, marriage equality was seen to concern more than just access to marriage and was instead symbolic of broader societal acceptance of gay and lesbian relationships since its introduction was based on a popular vote endorsed by 62% of the electorate. Perceptions of Ireland as “a leader in Europe on human rights and equality” increased following the referendum (Irish Human Rights & Equality Commission, 2015) and the Yes vote was seen to evidence a shift in Ireland’s traditionally conservative approach toward the LGBTQI + community (Ryan, 2019). However, as this article has shown, marriage equality has not positively impacted on all LGBTQI + parent families in the way that members of the community may have anticipated. The current research has shown that, contrary to the expectations of the participants in Pillinger & Fagan’s 2013 research, many LGBTQI + parent families remain unrecognized under Irish law and heteronormativity and discrimination remain prevalent.

The empirical research presented in this article indicates that LGBTQI + parent families experience multiple legal barriers in securing legal recognition of parent-child relationships. In a significant proportion of the LGBTQI + parent families captured by the research, children do not have a legal parent-child relationship with both of their parents and cannot acquire such a relationship due to the narrowness of existing laws. In addition, a number of respondents to the research reported that they had experienced discrimination as a parent because they identify as LGBTQI+. Often the discrimination arose as a result of rigid administrative systems that failed to accommodate the reality of LGBTQI + parenting. It is clear from the research that, in many cases, the law simply does not match the reality of parenting by members of the LGBTQI + community and ignores the lived experiences of their families. Legal reform is required to address these issues to ensure that the “equality” that was hoped for in the marriage equality referendum can be achieved.

Limitations

The methodology employed in the empirical research discussed in this article has limitations. It is noted that a bivariate descriptive analysis merely describes and documents a phenomenon of interest but it does not explain the relationship between two variables (Hong Chui, 2007). Similarly, thematic analysis is also limited in its ability to interpret data as it does not consider the relationships between variables. Hence, this area would benefit from further research in order to consider how the variables noted in this research might influence one another.

A further limitation of the empirical research is the small sample size of respondents. Due to the small sample, the results of the survey are not representative of the views or experiences of all Irish LGBTQI + parents but simply highlight some common legal issues that are experienced by some LGBTQI + parent families in obtaining legal recognition of their family relationships.