There is a strong argument to be made that non-marital fathers should be presumed to have automatic rights to guardianship unless challenged – unlike the current situation where they are presumed to have few if any rights.

That's from an editorial in the Irish Times that follows up on its article the previous day about the Irish Supreme Court ruling that granted parental rights to a sperm donor (Irish Times, 12/12/09).  I wrote a piece on this previously, but the editorial gives some more important information that the original article did not. 

To briefly restate the facts of the case, a lesbian couple wanted to have a child and their gay male friend agreed to act as sperm donor.  Conception and childbirth were successful and the little boy is now three years old.  The sperm-donor father sought a court order granting him certain limited parental rights (which seem to consist of what we in the U.S. might call visitation).  The European High Court rejected his request, but the Irish Supreme Court overturned that decision.  The man is now entitled to access to the child and may be entitled to "guardianship" (which I believe is the Irish counterpart of our "custody"), should circumstances arise that made that in the child's interests. 

Most compellingly, the court clearly relied on the child's best interests in coming to its decision.  It stated that the sexuality of the women played no part in the decision.

The Supreme Court found that the man was in exactly the same situation as any other non-marital father, and the lesbian partner of the mother was in exactly the same situation as any other third party who is not a natural parent.

Therefore, the female partner who had not given birth was considered by the court to be similar to a stepparent or a grandmother or aunt who had taken an active role in caring for a child.  The existence of that type of caregiver would not prevent a biological father asserting his parental rights, and neither should she.

But again, that would only be true if a court found that access by a biological father was in the best interests of the child and the court found that in this case.  The factors the judges relied on are worth noting.

To quote from Mr Justice Fennelly’s judgment, “From the point of view of the child, the psychiatrists were in agreement that a child should normally have knowledge, as part of the formation of his or her identity, of both parents, in the absence of compelling reasons to the contrary. Scientific advances have made us aware that our unique genetic make-up derives from two independent but equally unique sources of genetic material. That is the aspect of the welfare of the child which arises.”

These last sentences are the key to the importance of this judgment. Children come into being because of mothers and fathers. The right of a child to have knowledge of and contact with both was reasserted. It may have been hailed as a triumph for fathers, or erroneously described as a disaster for same-sex couples, but in fact it is primarily a triumph for children.

The court's reasoning gets perilously close to ruling that, absent a strong showing that he is a danger, a child has a right to know and associate with its father.  That is, the vast majority of fathers are per se a benefit to children.

Think of that.

This entry was posted on Saturday, December 19th, 2009 at 4:20 pm and is filed under Fatherhood, Fathers' Rights/Noncustodial parents' rights, Children's Rights.