Marriage Equality and Discrimination – Responses for Prime Time

Single individuals, unmarried heterosexual couples, and gay and lesbian couples have interests in having and rearing children. Overall results of research suggest that the development, adjustment, and well-being of children with lesbian and gay parents do not differ markedly from that of children with heterosexual parents. Data do not support restricting access to assisted reproductive technologies on the basis of a prospective parent's marital/partner status or sexual orientation. Programs should treat all requests for assisted reproduction equally without regard to marital/partner status or sexual orientation. This paper aims to explore the implications of reproduction by single individuals, unmarried heterosexual couples, and gay and lesbian couples. It also discusses a new California Healthcare law which deals with gay and lesbian discrimination for fertility treatment. The paper concludes that ethical arguments supporting denial of access to fertility services on the basis of marital status or sexual orientation cannot be justified. Keywords: Fertility, Treatment, Access, Gay, Lesbian, Unmarried Persons, Family, Reproduction, and Sexual Orientation.

2011

Child and Family Law Quarterly, 2017

Keywords: Surrogacy – consent – pre-birth model – post-birth model – Constitution of Ireland – children's rights In 2014, the Irish Parliament proposed surrogacy legislation as part of a larger Bill regulating donor-assisted human reproduction, adoption and family relationships, but the controversial provisions were deleted before the Bill became an Act. This paper will argue that this was a necessary move because the surrogacy proposals mirrored the existing UK legislation in this area; this could have resulted in their being susceptible to constitutional challenge in Ireland, if enacted. A cornerstone of the UK legislation, as illustrated by the recent case of Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam), is that the gestational surrogate can remain the legal parent of the child if she refuses to consent to a parental order in favour of the intended parents. However, a similar statutory dispensation in Ireland in favour of a gestational surrogate would most likely find itself under a constitutional spotlight if an analogous case of conflict came before the Irish courts. It will be argued that such a provision would most likely be contrary to Article 42A, the Children's Amendment that was recently inserted into the Irish Constitution, as well as the constitutional protection of the marital family contained in Article 41. In light of this, the paper will conclude by recommending an alternative, more child-centric and constitutionally compliant model for the regulation of surrogacy in Ireland.

Irish Journal of Family Law, 2017

The recent UK case of Re AB (Surrogacy: Consent) 1 illustrates how the " post-birth parental order " model of regulating surrogacy arrangements can lead to an outcome that is contrary to the best interests of surrogate-born children. This article will critically analyse the " post-birth parental order " model in light of the decision in Re AB (Surrogacy: Consent) and assess its potential non-compliance with Arts 41 and 42A of the Constitution if it is introduced via legislation in this jurisdiction. The article will conclude by recommending a viable alternative legislative framework for the future regulation of surrogacy in Ireland that would provide greater legal certainty for surrogate-born children from the moment of birth. The Post-birth Parental Order Model of Surrogacy Regulation This model operates in the UK and provides that, upon birth, the surrogate is recognised as the legal mother and guardian of the child. It involves court proceedings following the birth of the child in order for the couple who commissioned the surrogacy arrangement to become the child's legal parents and guardians. 2 The " commissioning couple " may be spouses, civil partners or two persons who are living as partners in an " enduring family relationship ". 3 To acquire the status of legal parents the commissioning couple or " intended parents " must apply to the court for a Parental Order and the surrogate must consent to the making of this order. Section 54(7) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) allows the surrogate a " cooling-off " period by providing that she can only consent to the making of such an order no less than six weeks after the child's birth. If the surrogate refuses to consent to the making of a Parental Order then she will remain the child's legal mother and guardian, irrespective of what was agreed between the parties. 4 The recent case of Re AB (Surrogacy: Consent) starkly illustrates how this blanket statutory dispensation in favour of a gestational surrogate 5 allows her to act irrationally and in a manner that is clearly contrary to the best interests of surrogate-born children. Re AB (Surrogacy: Consent) A and B were twins born via an altruistic 6 gestational surrogacy arrangement in the UK. They had lived with the applicants, their genetic, married parents, since the day following their birth and were " thriving " 7 in their care. A and B had no contact with the respondents, the surrogate and her husband, and the respondents had also made it clear that they wished to play no active role in the children's lives. Nonetheless, the respondents refused to consent to the making of a Parental Order in favour of the applicants. Theis J. observed that s.54(6) of the HFEA 2008 states that if the respondents' consent is not forthcoming, the court cannot proceed to make a parental order in favour of the genetic parents. Theis J. noted that the respondents' rationale for refusing their consent was " due to their own feelings of injustice, rather than what is in the children's best interests. " 8 The relationship between the applicants and the respondents had broken down during the pregnancy. The catalyst appeared to have been an appointment at the time of the 12-week scan when the consultant obstetrician expressed very real concerns about the surrogate's health if the pregnancy continued. Although the pregnancy continued, the surrogate felt that the applicants did not show sufficient concern for her wellbeing during this period. Theis J. observed Page1

This paper, completed in 2014, analyses the state of affairs in the legal recognition of same-sex partnerships in Slovenia, terminology related to sexual orientation, gender identity and intersexuality, issues related to adoption, medically assisted procreation and surrogacy, recognition of foreign judgments and administrative decisions, employment and social benefits, mobility and immigration rights, conclusion of partnership, consequences of death of one of the partners, legal issues related to living in same-sex partnership and separation of the partners. Note that new legislation on same-sex partnerships was adopted in April 2016 (it will become applicable in February 2017). The paper was produced within a project titled Rights on the Move - rainbow families in Europe, which was coordinated by the University of Trento (Italy) and funded by the European commission within the Fundamental Rights and Citizenship programme (2013-2014).

Irish Jurist, 2014

Irish Journal of Family Law, 2015

One of the most critical issues in the landscape of the Member States of the European Union is the recognition in other Countries of the parent–child relationship within ‘rainbow families’. The parenthood of partners of same sex couple is acknowledged in Spain and the Netherlands. In other countries laws offer a timid and partial protection against discrimination of the children of same sex couples. In the majority of countries, however, there is still no legislative provision recognizing and protecting a child’s relationship with one of the partners of a same sex relationship. This legal fragmentation threatens freedom of movement within the European Union and challenges the principle of discrimination between children, only on the base of the sexual orientation of the partners in the family. By scrutinizing the distortion of the framework of fundamental rights (as recognized within the European Union) and by raising the awareness that European citizenship includes a new dimension of individuals’ protection, the paper will investigate political and juridical issues, in relation to the implementation of children rights and mutual recognition between the States. The innovation of this approach lies in the mutual recognition of the forms of protection and on the study of the available case law at the European level. The analysis will be aimed to the fundamental protection of children and to the enforcement of all the measures which are necessary for the full protection of the best interests of the children.

Same sex marriages are happening everywhere around the world and it has received a significant boost in numbers since the landmark ruling given in Obergefell v. Hodges which made it legal in the 50 states across the United States of America. It is a given that it has come to stay going with the way gay pride parades and marches have been held around the world especially in countries where it has been legalised like the United Kingdom, the Netherlands to mention a few. The list of issues that defy a conclusive reasoning is non exhaustive especially within the context of the same sex marriage debate and they include - the socio-cultural and psychological disconnect that children are exposed to when their parents are gay or transgender, the ever evolving definition of a family unit, the inadequacy of the laws available to take care but largely vague in interpretation, who raises the children in a same sex marriage setting among others. These issues amongst others portend a changing landscape for the future of family law and to a larger extent the human race. In practice, same sex marriage is argued from the viewpoint of being a human rights issue but this project work will try to sieve through the raging controversy which has greeted this debate from both moral, political and even from proponents of the traditional family institutions. It is trite to note that even where regulations exist to excuse or better still legalise this form of marriage, it is still not acceptable in major cultures and civilisation across the world and particularly in many African countries like Malawi, Zimbabwe, Kenya and Nigeria. The research will argue for and against same sex marriage but will touch on the salient fact that it is a movement that will come to be accepted over a period of time and get the needed attention it deserve but will ultimately attempt to address emerging trends in the same sex marriage debate. Keywords: same sex marriage, regulation, institution.