6 December, 2022
Spotlight on LGBTQI+ Research: The legal obstacles facing LGBTQI+ parent families
Dr Lydia Bracken
Posted: 28 June, 2022
The legal obstacles facing LGBTQI+ parent families and why we need to recognise diverse family relationships in Ireland
I have been researching the legal issues pertaining to LGBTQI+ parent families for over 10 years. When I started my research in this field, there was no mechanism in Irish law whereby both members of a same-sex couple could be jointly recognised as the legal parents of the same child. Despite recent progress, LGBTQI+ parent families in Ireland continue to face obstacles in obtaining legal recognition of their family relationships. While Irish law embraces a variety of ‘new’ and ‘non-traditional’ family forms, it fails to accommodate many others.
My Irish Research Council funded New Foundations project, LGBTI+ Parent Families in Ireland: Legal Recognition of Parent-Child Relationships, was carried out in collaboration with LGBT Ireland. It highlights the need for legal reform to recognise diverse family relationships, but also underlines the fact that reform alone is not a panacea and that wider issues need to be addressed in order to accommodate all LGBTQI+ parent families.
Since 2015, it has been possible for both members of some female same-sex couples to be jointly recognised as the legal parents of their child, but many others are excluded from legal recognition depending on how the child was conceived. At the time of writing, surrogacy is not regulated under Irish law (although the Health (Assisted Human Reproduction) Bill 2022 proposes to regulate certain types of surrogacy arrangement), which means that both members of male same-sex couples who avail of surrogacy cannot be jointly recognised as legal parents – only the genetically-related intended father can be recognised as a parent under Irish law.
Dr Lydia Bracken
Hence, while same-sex couples are eligible to apply for joint adoption of a child, it is clear that many pathways to parenting for LGBTQI+ parent families are not accommodated under Irish law. There is, however, limited formal data on the extent to which LGBTQI+ parent families are impacted by the current law. My research project sought to address this gap in knowledge by investigating and highlighting the nuances of, and legal difficulties faced by, LGBTQI+ parent families in Ireland in obtaining legal recognition of their family relationships. This project built on my earlier research in the field, which included previous research with LGBT Ireland.
Discussions about parenting are often approached from an adult perspective. Traditionally, arguments in favour of the legal recognition of LGBTQI+ parenting have followed a similar pattern, presented in terms of non-discrimination and equality concerning the adults, rather than the children involved. Yet, children are the group most affected by the law’s failure to recognise their family relationships. Thus, it is essential that legal discourse about any aspect of parenting is approached from the perspective of the child’s rights and best interests, as I argue in my monograph on Same-Sex Parenting and the Best Interests Principle (Cambridge University Press, 2020).
The main output from my IRC New Foundations research is an open-access report on LGBTI+ Parent Families in Ireland: Legal Recognition of Parent-Child Relationships, which presents 10 recommendations to address the key issues identified in the research. The publication of the Report was accompanied by an RTÉ Brainstorm article, which summarises the main findings.
The greatest challenge and opportunity facing legal researchers examining contemporary family relationships has been the rapid pace of legislative change and proposals for reform in recent years. When I began my research, there was no substantive legal recognition of LGBTQI+ parenting arrangements in Ireland: while a single gay or lesbian person could be recognised as a legal parent, there was no recognition of same-sex couples as joint legal parents prior to 2015.
Since 2015, the legal landscape has changed dramatically due to the Children and Family Relationships Act 2015 (regulation of donor-assisted human reproduction), the Gender Recognition Act 2015 (recognition of gender), marriage equality (allowing persons of the same-sex to marry) and other developments. Since 2014, there have been three different (albeit similar) legislative proposals for the regulation of surrogacy. These developments are positive but can lead those outside of the field to mistakenly believe that full legal recognition has been secured for all families when in fact much more is needed to ensure that the diverse range of families that exist in Ireland in 2022 are fully recognised by the law.
Dr Lydia Bracken is the Assistant Dean for Equality, Diversity and Inclusion in the Faculty of Arts Humanities and Social Sciences and a Senior Lecturer at the School of Law, University of Limerick.
The opinions expressed here are those of the author and do not represent or reflect the views of the Irish Research Council.