There were great celebrations in the Dublin home that Elaine Cohalan shares with her wife Jenny Synnott this month. Their baby daughter, Cate, turned one and the couple marked the occasion as any family would – with pride and joy and an acknowledgment of the great pleasure that the child has brought.
But the occasion was tempered with a frustration that has gnawed at Cork native Elaine and her American spouse ever since Cate’s birth. Although the two may, outwardly, be seen as the child’s parents, in the eyes of the law, it’s only Elaine who can legally call herself Cate’s mother. It was Elaine who gave birth to Cate through a known donor and although she and Jenny have been married since 2016, Jenny has no parental rights over her child whatsoever.
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“We’re a very normal family,” says Elaine, a charity worker. “We get up to feed her at night, wake her in the morning, take her to the park, and deal with all the up and downs that families go thorough but, legally, I’m a single mother and, legally, I’m a single mother on her passport. I had to sign an affidavit stating that no other person has any legal parental entitlements to her in order to get a passport for her.
“On a day-to-day basis, it impacts on our lives. My wife can’t take our daughter to the doctor. She can’t get her vaccinated. She can’t sign her up for crèche unless she has my permission. I have to go to the crèche to give my permission for her to collect her. It just goes on and on. All the practical things that parents do every day, all around the country.”
The couple thought they would enjoy full equality when the same-sex marriage referendum was passed by an overwhelming majority in 2015. It was also the year the Child and Family Relationship Bill was enacted. But while Ireland celebrated becoming the first country in the world to make gay marriage legal following a referendum put to the people, Elaine and Jenny are among many LGBT couples to learn that they don’t enjoy equality with their heterosexual counterparts.
“I’m 37. My wife is 45. We can’t keep waiting for the legal situation to catch up with the reality of families in Ireland today – and for any woman in their 30s, the clock is ticking. We couldn’t hang around and wait. We were optimistic that change was coming soon and we thought that at the time we’d be successful in getting pregnant, by the time our child would be born, that these things would be resolved. But here we are four years on, and still no change.
“If something happened to me, Jenny would have no legal rights. The responsibility for Cate would automatically transfer to my parents. There would have to be a court process. You’d hope common sense would prevail and we’re lucky in that my parents are very supportive of my marriage and situation, but not everyone is as fortunate.”
With the annual Pride festival under way today, much of the country’s focus will turn to Ireland’s thriving LGBT community. But while many will assume that gay families enjoy the sort of parity that’s normal for others, the truth could hardly be more different.
Earlier this week, Recognising Rainbow Families – a seminar co-organised by lobby group LGBT Ireland – publicised the discrepancies that exist and the pain that’s being wrought on families thanks to gaps in the legislation.
LGBT Ireland CEO Paula Fagan knows only too well the heartache that is being suffered by families in Ireland today. She and her wife, the well-known social justice activist Denise Charlton, have two children but each is legally recognised as the parent of one boy.
Paula gave birth to Cian (9) and Denise gave birth to Benan (12) but neither is legally entitled to call themselves the parent of the other child.
“The intention of the Children and Family Relationships Act was to broaden the law to recognise diverse family forms including same-sex parents,” she says. “It was passed into law in April 2015 [a month before the same-sex marriage referendum] but not all of the law has been commenced.
“What has happened is that some of the provisions under the law – such as those in relation to guardianship – have been extended to same-sex couples, but provisions relating to a child conceived using a donor haven’t been introduced into law. So what that means is an awful lot of couples who use donor-assisted reproduction to conceive are not both recognised as parents.
“Only one of the them is considered to be a legal parent and one of them can’t establish a legal relationship with their child. So, unlike the UK for instance, even if a couple are married, that doesn’t mean that both parents are legally recognised.”
Paula says the gap in the legislation has been a great source of personal distress.
“The law should reflect the reality of the lives of Cian and Benan who have nothing other than Denise and I as their parents and yet it doesn’t. They’re too young to understand it now, but they will one day and I just hope that the law has been altered by then.”
She says the failure to legally recognise her as Benan’s mother and Denise as Cian’s parent has become increasingly difficult to tolerate as the boys have got older. “What if Cian needed medical consent and I’m not around? Or vice versa with Benan? [The frustration] comes in waves. As the children reach a different stage in their development, you see how unfair it is for them. When they’re younger, it’s nerve-wracking because they’re often sick.
“There are so many little things that families take for granted and there are also really big issues for those who have gone down the surrogacy route to have children.”
Both are legal guardians to the boys, but it doesn’t compensate for not having parental recognition. “The problem with that is it runs out at 18 but your child is your child for life. I nursed my mother, I was her legal representative, so as you start to age, there are implications for adult children, too. And they need recognition in terms of inheritance and so on.”
Guardianship can only be applied for once a child turns two and it’s something that Elaine Cohalan and Jenny Synnott will pursue, even though Elaine feels it comes nowhere close to having legal parent status.
“Guardianship is basically all of the responsibilities of being a parent with none of the real rights,” she says. “Guardianship, from my understanding, was designed to be there in tragic circumstances where someone in or outside of the family had to take care of the child when the parent wasn’t able to do it any longer. It’s not appropriate for a family that already exists. That system was designed for families that already exist.”
Elaine says she is frustrated that there isn’t a widespread campaign to address the issue. “There’s a lack of awareness even within the LGBT community, too, that this is happening. It’s not very clear. Ever since 2015, there have been numerous headlines saying the problem has been solved but it hasn’t.”
Family law expert Lydia Bracken of the University of Limerick was among the academics speaking at the Recognising Rainbow Families seminar on Tuesday.
“Right now, LGBT families are not fully equal under the law. Same-sex parents cannot jointly be recognised as legal parents where they have engaged in donor-assisted human reproduction (DAHR) or in relation to surrogacy.”
Four main issues
Even when the parts of the Children and Family Relationship Act (CFR) pertaining to DAHR are commenced, there will still be inequality. And she argues that there are four main issues.
“For non-clinical DAHR [where people chose not to go to a clinic but to conduct the procedure in their own home though self-insemination], they will not be covered by the legislation. They may chose to go down this route for privacy or cost reasons. Yet, you’d have a situation where children who have been conceived in virtually identical circumstances – one in a clinic and one not in a clinic – will be treated very differently under the law and that will lead to inequality among different categories of children.”
A second issue is the shortfall in the proposed provision allowing for a retrospective declaration of parentage to be made, but only for those who used an unknown donor.
“If you used an identifiable sperm donor or you know the identity, then you wouldn’t be able to apply for this retrospective declaration,” she says. “That’s problematic because before the legislation ever came into being, people wanted to make sure that children have access to the identity of their donor so they might have chosen to use a known donor for that reason, but they would be potentially penalised.”
Under this rule, Jenny Synnott would not be recognised as Cate’s mother because she and Elaine used a known donor.
Thirdly, the CFR does not regulate ‘reciprocal IVF’ – where one partner provides her egg and then it and the donor sperm are carried by the other partner.
“It allows both of the women to be physically involved in the pregnancy,” Lydia Bracken explains. “But that form of assisted reproduction is not covered in the CFR Act so there’s a lot of uncertainty as to whether and how the legal provisions would apply once the child is born. Is the women who provided the egg going to be classified as a legal mother, or is she going to be classified as a donor and if she’s going to be classified as a donor, she will have no parental rights. We need clarity on that.”
The fourth DAHR issue is related to procedures that take place overseas after the legislation has been commenced. “The legislation only covers any procedure that takes place in Ireland,” she says. “That’s problematic because there are some medical procedures that simply aren’t available in Ireland. But if you go abroad, the legislation will not recognise both as legal parents.”
To add to the concerns of LGBT parents, surrogacy is not regulated in the CRF Act. Instead, the Assisted Human Reproduction Bill 2017 will govern surrogacy issues, but Erica Bracken insists it is not an appropriate model. “I would urge the legislature to rethink the approach that is currently proposed. It’s too restrictive to recognise the reality of surrogacy in Ireland. It only covers domestic arrangements, only if you have your surrogacy taking place in Ireland – if you go abroad for a surrogacy arrangement you wouldn’t be covered.
“It only refers to as what’s known as gestation arrangement, so that means that the surrogate can’t be genetically related to the child, and a major omission is that the bill, as it currently stands, does not cover children who have already been born through surrogacy. That’s very significant because Ireland is the second highest user of surrogacy per capita in the world so a lot of children have already been born through surrogacy but the proposed bill would not recognise them.
“In contrast,” she adds, “in the cases of DAHR, there is a provision to retrospectively recognise parentage where a child has already been born and I would argue that we also need an equivalent procedure where a child has already been born though surrogacy so that both of the parents can be legally recognised.”
Elaine Cohalan, meanwhile, hopes that the rights of LGBT families are not lost amid the happy, carnival aspect of Pride. “It has become a huge part of the Irish festival calendar and it’s a celebration – and rightly so – but Pride is also a protest. It’s how it started. And we’re still fighting for rights, and there are still lots of things to fight for and we can’t lose sight of that.”
‘Still major ommisions’
Much has been made about the new Civil Registration Act, which was brought into law last month, but many of the media reports claiming it will ensure that all female same-sex relationships can now be named on the child’s birth certificate are wide of the mark.
Family law lawyer Lydia Bracken explains: “The Civil Registration Act 2019 fixes the errors that were detected on the Children and Family Relationship (CFR) Act so now that all of the errors have been ironed out, we’re in a position where the CFR can be commenced and once it is commenced, female couples who undergo donor-assisted human reproduction will be able to jointly register the birth of their child.
“But there are still major omissions from the legislation [see main article] and when the CFR Act is commenced, those will still be problems and they still need to be addressed.”
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