Analysis: new research into LGBTQ parent families highlight the need for legal reform to recognise diverse family relationships in Ireland

In 2015, 62% of the Irish electorate voted in favour of the same-sex marriage referendum. The Children and Family Relationships Act 2015 had been passed into law just one month before the referendum, providing a mechanism to enable some same-sex couples to be jointly recognised as legal parents of their children for the first time under Irish law. Many therefore believed that both family recognition and marriage equality had been achieved in 2015.

However, there was a five-year delay in commencing Parts 2 and 3 of the legislation, which meant that it was not until March 2021 that the first two women were jointly registered as legal parents of their new-born children. Many families have also found that they do not meet the criteria for recognition under the Children and Family Relationships Act 2015, as the legislation accommodates a specific definition of donor-assisted human reproduction. In addition, there is no specific Irish legislation to regulate surrogacy. Thus, as of November 2021, many LGBTQ parent families remain largely unrecognised under Irish law.

In new research, less than half of the LGBQ parents who responded to a survey about their family relationships indicated that both they and their spouse/partner are joint legal parents of all of their children. This indicates that many families fall outside of the criteria specified in the Children and Family Relationships Act 2015. Moreover, none of the parents through surrogacy who responded to the survey indicated that they are joint legal parents of their children with their spouse/partner, reflecting the fact that there is no legal framework to allow for such recognition.

It is possible under Irish law for someone who is not a legal parent to apply for guardianship of the child as a way to create a legal relationship between them. However, there is a two-year waiting period before the person who is not a legal parent becomes eligible to apply for guardianship. Only 53% of respondents in the new survey indicated that both they and their partner/spouse are joint guardians of all of their children.

The research, which is published in the Report on LGBTI+ Parent Families in Ireland: Legal Recognition of Parent-Child Relationships, highlights the practical legal barriers faced by these parent families in their day to-day lives as a result of non-recognition of the legal parental status of one parent. Many respondents reported discriminatory attitudes among professionals; a failure to acknowledge diverse families in official forms and policies; and obstacles in the provision of care for the child where one parent is not recognised as a legal parent (for example, in respect of the provision of consent to medical treatment).

Respondents to the survey were also critical of the court processes for establishing legal parentage and guardianship, describing their experiences in the courts as ‘stressful’, ‘intimidating’, and ‘daunting’, among other things. Other respondents commented on the high costs involved in making various court applications.

The experiences of the respondents in this research highlight the pressing need for legal reform to recognise diverse family relationships, but also underline the fact that legal reform alone is not a panacea and that wider issues need to be addressed in order to accommodate all LGBTI+ parent families. The Report presents 10 recommendations to address these areas.

The findings from the current research largely align with recommendations made in the Special Rapporteur on Child Protection’s Review of Children’s Rights and Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy in Irish Law, which was published in December 2020. In this review, the Special Rapporteur concludes that a number of amendments are required to existing legal provisions and a number of new legal provisions need to be introduced in order to safeguard children's rights and best interests in the context of DAHR procedures and surrogacy arrangements.

These recommendations, if enacted, would address many of the issues noted in the new report. It is to be hoped that the Government will act on these recommendations and finally introduce comprehensive legislation that embraces the diversity of families that exist in Ireland in 2021.

The Report on LGBTI+ Parent Families in Ireland: Legal Recognition of Parent-Child Relationships was compiled by Dr Lydia Bracken from the University of Limerick, in partnership with LGBT Ireland and supported by the Irish Research Council New Foundations Scheme.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ