Analysis: 10 years post-marriage equality, many same-sex parents are still campaigning for legal recognition of their families
When the Children and Family Relationships Act 2015 was signed into law one month before the marriage equality referendum was put to the Irish electorate, it introduced a range of provisions to allow same-sex couples to exercise joint legal parenting rights for the first time under Irish law. Among other things, it included provisions allowing for two women to be jointly recognised as legal parents in certain cases of "donor assisted human reproduction" (DAHR) and provisions extending adoption rights to civil partners and (same-sex and opposite-sex) cohabiting couples for the first time.
With the successful referendum result, Irish same-sex parents and their families had a lot to celebrate in 2015. However, few people could have envisaged the delays that would follow: while married same-sex couples became immediately eligible to apply for adoption, the provisions extending eligibility to civil partners and cohabiting couples were not made operational for a further two years (and as part of a separate statute), while the DAHR provisions were not commenced for five years.
Fewer people still would likely have thought that, 10 years post- marriage equality, many same-sex parents would still be campaigning for legal recognition of their families.
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From RTÉ Radio 1's Morning Ireland, Challenges for LGBTQ+ community 10 years after referendum
In research conducted in 2021, DAHR was found to be the most common pathway to parenthood undertaken by Irish female same-sex couples. Yet, of the female parents that engaged in the research, only 50% indicated that both they and their spouse/partner are jointly recognised as legal parents of all of their children. The other 50% fell outside of the legal framework due to the nature of their child's conception, which did not meet the criteria for recognition under the 2015 Act.
In these cases, the children of the family are unable to secure a legal relationship with both of the parents who are raising them and may be legally disadvantaged in other areas, such as citizenship and automatic inheritance rights vis-à-vis the parent who is not legally recognised. Surrogacy is also not regulated under the 2015 Act, so none of the parents through surrogacy who engaged in the research were jointly recognised as legal parents with their spouse/partner for the purpose of Irish law.
The Health (Assisted Human Reproduction) Act 2024 has now introduced provisions to address many of the gaps in Irish law relating to assisted human reproduction (AHR). Perhaps most notably, the 2024 Act introduces a framework for the regulation of surrogacy (both domestic and international, as well as covering past surrogacy arrangements) and amends certain aspects of the 2015 Act to accommodate a greater range of family relationships created through DAHR.
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From RTÉ Radio 1's Drivetime, Families welcome new laws on assisted human reproduction
In addition, in October 2024, the General Scheme of the Health (Assisted Human Reproduction) (Amendment) Bill 2024 was approved for drafting to address some outstanding gaps in the legal framework. This General Scheme is expected to focus on the recognition of legal parentage in situations where Irish residents undergo DAHR outside of Ireland, or where Irish citizens who are living abroad engage in DAHR or surrogacy in the country that they are living in. These matters are not currently addressed under the existing legislation.
While these are positive developments, at the time of writing, the provisions of the 2024 Act have yet to be commenced (made operational) and the new General Scheme has yet to be published (though it is on the priority drafting list for Spring 2025). As such, many gaps remain in the legal framework affecting LGBTQ+ parent families (which also affect many heterosexual parent families) in Ireland and it is unclear when exactly those gaps will be addressed.
Read more: The pivotal case that came before marriage equality in Ireland
Same-sex couples face further obstacles in their journey to parenthood due to the fact that AHR treatment involving donor gametes (sperm/egg) is omitted from Ireland’s AHR treatment funding scheme. While many different-sex couples are also affected by the absence of funded donor procedures, this approach disproportionately affects same-sex couples and single persons. When the scheme was first launched, it was stated that it would ultimately be expanded to cover donor procedures, but only once the regulatory framework for such treatment is put in place. The 2024 Act has now introduced comprehensive regulation of various forms of AHR, which removes the barrier identified by the Government to expansion of the funding scheme. Yet, as noted earlier, the provisions of the 2024 Act have yet to be commenced and so, until they are, it seems unlikely that the funding scheme will be expanded to include donor procedures.
LGBTQ+ parent families have experienced a number of delays in their pursuit of family rights over the past 10 years. Patience is a virtue but, in fertility and families, time is of the essence. Prospective parents do not have the luxury of waiting for legal change before starting their families and children cannot be expected to go through childhood without the security of having a legal relationship with both of their parents while awaiting legal reform that might recognise their lived family relationships.
It is to be hoped, therefore, that the 10-year anniversary of marriage equality will prompt momentum in this area so that the "equality" that was so hoped for at the time of the referendum can finally be achieved for LGBTQ+ parent families.
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The views expressed here are those of the author and do not represent or reflect the views of RTÉ.
