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The Issues - Family Formation
An increasing number of lesbian and gay couples, women in particular, are parenting children conceived in a variety of circumstances.
The various scenarios where new diverse families are being formed have been highlighted by the Government Working Group on Domestic Partnership, chaired by Anne Colley, and in a range of publications including GLEN's Submission to the Law Reform Commission on Legal Aspects of Family. The scenarios include:
- Children from a previous relationship. A common scenario is where one same-sex partner, who was previously in a married or unmarried heterosexual relationship, brings children from that marriage or unmarried relationship creating a step-family situation similar to other, heterosexual step-family arrangements. In many cases, the biological parents may have joint or shared parenting arrangements that involve both of the biological parents and, in practice, also involve the new same-sex partner.
- Conception and parenting through agreement with a known Father or through access to professional fertility service. It is possible for one or both partners of a lesbian couple to become pregnant through the donation of sperm through agreement with a known father or by means of professional fertility services. The involvement of the father can vary from no involvement at one end to shared parenting arrangements with the father (and possibly his partner) at the other. The recent Supreme Court Judgement in the case of JMcD v PL and BM centred on a dispute over one such agreement between a lesbian couple and a gay man.
- Adoption by one of the partners. It is possible in Ireland for an individual who is in a same-sex relationship to adopt a child. However, a couple under Irish law may only adopt jointly if they are married to each other. This situation will continue under the Civil Partnership Bill 2009, which does not allow for same-sex couples who register their partnership to be considered as potential joint adoptive partners.
- Fostercare. Although same-sex couples are not entitled to jointly adopt a child, in practice there is nothing in law precluding a couple from fostering a child. The report of the Government's Working Group on Domestic Partnership (2006) noted that lesbian and gay couples who are fostering children form a small but significant group in terms of the overall numbers of same-sex couples parenting children. The success of lesbian and gay couples as foster parents of children entrusted to them by the HSE has also been acknowledged recently by the Minister for Children, Barry Andrews TD .
- Surrogacy. Though practically and legally more complex, it is possible for a couple (for example two gay men) to enter into a surrogacy arrangement, whereby a third party agrees to carry a child on the couples' behalf. As noted by Fergus Ryan, from virtually every perspective, practical, ethical, emotional and legal, this is a challenging option. The complexity around it is illustrated in the Report of the Commission on Assisted Human Reproduction (2005), which recommended (by a majority) legal recognition of surrogacy arrangements, provided certain strict conditions are met.