A sperm donation is for life, not just for Christmas

Look, I realise that The Irish Times only provides Breda O’Brien with a column to get its liberal readership riled up. Nobody wants to read opinions that conform rigidly to the mainstream the whole time (on which point, here‘s an insidiously good article on how climate change is grand). Well, I am liberal and I am riled, and here’s why Breda O’Brien – and the Supreme Court – are thoroughly wrong.

On December 10th, the court gave judgment in a case concerning a lesbian couple, a gay man and a child. The man, a friend of the couple, had provided the sperm necessary to conceive a child to be raised by the couple. He agreed to become a sort of “favourite uncle”, but after the child was born, became attached to such an extent that he sought increased and regular access. After the couple rejected this as inappropriate, he went to the courts looking for his rights as a father to be upheld. On appeal, the Supreme Court sided with him.

In fact, there is no denying that the court was correctly applying the law (Irish law does not recognise “de facto” families like lesbian couples, and the Constitution reflects 1930s Ireland’s attachment to the traditional family unit based on marriage). But I disagree with Ms. O’Brien’s thinking that this is cause for celebration.

Her argument is that this is what’s best for the child. A child needs parents, and since “children come into being because of mothers and fathers”, it follows that “it is in a child’s best interests to know and have contact with his or her father”. This is supposed to be “a triumph for common sense and human decency”.

What garbage. Children come into the world because of men and women, not mothers and fathers. The original High Court judgment, in favour of the couple, emphasised that “there is no real relationship between [the child] and [the father] other than a biological one”. Yet in the Supreme Court’s analysis, the partner of the biological mother here – her longterm partner, with whom she concluded a civil partnership in London several years ago, and who obviously shares in the upbringing of the child – has less rights than the man. In fact, she has no more legal status in relation to the child than that of a grandparent or foster parent.

Ms. O’Brien makes the point that it’s not about sexuality, since the law would do the same to any unmarried couple in this scenario. But of course, in this situation, the women would marry – giving themselves full legal protection – like a shot, but they’re not allowed. It’s not their fault they’re not allowed – it’s the fault of people like Ms. O’Brien who don’t think two people of the same gender can be in love like a man and a woman. (And, all right, that pesky constitution again).

This is the law; so be it, although it’s unjust. But to applaud the notion that the guy who donated sperm has a bigger place in the child’s life than the woman who raises it is outrageous. It defines “parenthood” in purely biological terms, which take no account of social reality.

You might say, all right, but all they’re doing is giving the poor chap access to this child to whom he obviously feels attached. True – but there are practical consequences to this conceptual approach to family life. In law, the man’s rights outweigh those of the “other mother”. So if, say, the member of the couple who gave birth were to pass away, the partner would lose custody of the child to the man, were he inclined to insist. And in the Baby Anne case, this exact same preference for “natural” parents led to the removal of a child from her adoptive parents of some 24 months.

I accept that it’s a hard case, and have every sympathy for the man’s “powerful paternal instincts”, which he couldn’t have foreseen before making the agreement. Still, you’d have to wonder why giving this kid two loving parents and a guy who comes by every second Sunday is seen as less harmful, less confusing, less damaging, than leaving him with two loving parents. Even if they are both chicks.