Same Sex Female Couples Recognised as Co-Parents

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Same sex female partners can now both be legally recognised as parents of a child born to one of them.  The legal change came into effect this month and strengthens parental rights and protection for children of female same sex couples.

Without such legal rights, one partner was prevented from making key parental decisions for the child. For example, they had no legal right to formally make decisions on education or medical matters, such as vaccinations. Even more importantly, they had no legal parental status, should the other parent die.

This breakthrough in Irish Law follows implementation of the Child and Family Relationships Act 2015. Parts 2 and 3 of the 2015 act were legally commenced on 4th May 2020, changing for the first time in Irish Law the definition of “parent”.

These provisions apply to all children conceived via Donor Assisted Human Reproduction (DAHR), as long as this was conducted by a recognised facility.  For children conceived after 4 May 2020, anonymous donation WILL NOT be permitted. The donor must be both traceable and identifiable.

Children of Same Sex Female Couples Conceived before 4th May 2020

For children conceived after the commencement date to a same sex couple, the same sex couple can automatically be registered as parents. However, the new provisions also make it possible to apply retrospectively to re-register the births of children conceived before the commencement of these parts of the Act.

Section 5 defines which persons are the legal parents of a child conceived via DAHR, and introduces the concept of an “intending parent” and of “donor” into Irish Law.  The definition of a person who is an “intending parent” is a person who was:

 …”aware of the procedure (DAHR) and….who undertook to care for and exercise responsibility towards, any child born as a result of the procedure, as if he/she were the parent”.  

Such persons can now apply to be registered as parents of the child on the child’s birth certificate.

Retrospective Registration for Female Same Sex Parents

For children conceived before the commencement date of 4 May 2020, application can be made to re-register the birth. The re-registration process allows the other female partner to be named as a parent. This involves an application to either the District Court or the Circuit Court to seek a Declaration of Parentage. The Declaration can then be lodged with the Registrar Generals office to amend the register.

The key date is the date of conception, not the date of birth. Therefore, for children conceived before but born after 4th May, the birth mother only is recorded in birth registration. Then the birth must be registered in the usual way. The couple can then apply subsequently to the court to re-register the birth, and record the second parents details.

For children conceived after the commencement date, both partners can generally be recorded as parents in birth registration. In most cases, this will not require court application.

Criteria for Retrospective Registration:

  • The procedure must have been carried out in Ireland or abroad and have been in a DAHR facility (not home insemination).
  • The child must have been born in Ireland
  • Anonymous donation is permitted retrospectively. (N.B. For children conceived after 4 May 2020, anonymous donation WILL NOT be permitted. The donor must be both traceable and identifiable.)
  • Known donors however ARE NOT permitted retrospectively, therefore parties who have used a known donor will be unable to apply for retrospective registration

While this should be largely an administrative process, the procedure is detailed. It requires Court Application, Affidavits and Statements to be furnished to the court. The child must also be joined as a party to the proceedings. This is to ensure that the child’s constitutional right to be heard in the proceedings, is vindicated. Care should therefore be taken, and legal advice obtained, to ensure success.

If you have any queries about retrospective registration, please email me at deirdre.burke@orpenfranks.ie

 

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