A welcomed step in the right direction....but...

hoodwinked

Equal parent rights for gay couples

Gay couples will get equal parenting rights regardless of whether the referendum on same sex marriage is passed.

http://www.irishexaminer.com/ireland/equal-parent-rights-for-gay-couples-256111.html

While i agree with this, i think its a step in the right direction for all parents out there,

but will it mean all biological parents will now have a right to their child regardless of the marital status of the parents?

pwurple

From my reading of this, automatic guardianship is proposed to being extended to civil partnership (it already exists for civil marriage).

I don't see why it would apply to single people. They have chosen to remain legally unrelated to eachother. Civil partnerships and those who get married have chosen to be related to eachother. Opposite sex couples already have this right in place, if they choose to exercise it.

hoodwinked

pwurple wrote: »

From my reading of this, automatic guardianship is proposed to being extended to civil partnership (it already exists for civil marriage).

I don't see why it would apply to single people. They have chosen to remain legally unrelated to eachother. Civil partnerships and those who get married have chosen to be related to eachother. Opposite sex couples already have this right in place, if they choose to exercise it.

oh don't get me wrong, i am totally in support of this, anyone in a civil partnership should both have rights to their child,

having a step-father myself i know the genes mean nothing its the supportive parents who are there for you that count,

but along with these changes to rights for the child there are biological fathers out there with no rights to their child, because they didn't get married to the mother, which is also an injustice,

if you are correcting one injustice why not correct them all?

pwurple

hoodwinked wrote: »

but along with these changes to rights for the child there are biological fathers out there with no rights to their child, because they didn't get married to the mother, which is also an injustice,

if you are correcting one injustice why not correct them all?

Because it's already available maybe? There are two options for legal guardianship in existence for opposite sex couples. Marriage, or complete the forms with a solicitor without marriage. People choose not to do those either deliberately (because they want no involvement with the child), through ignorance of the law (which is sad and should be addressed), or just through laziness.

It doesn't need to be fixed imho, because there are provisions already in place, without barrier. People just don't use what is readily available to them.

It's completely different for same-sex couples, that is an actual injustice, because there is nothing in place for that situation at all.

Sleepy

Heard something on this last night on the Right Hook on Newstalk and was wondering: do non biological heterosexual parents currently get guardianship rights through civil partnership or marriage?

Not that I'd be against the non-biological parent(s) in a same-sex couple having such rights but I'd be of the opinion that it's probably something that should have to be applied for rather than an automatic effect of the union. As a step-father I don't believe that my rights should supercede my step-son's fathers. In the case of a deceased or uninvolved (through their choices rather than the custodial parent's), I would of course support a step-parent's rights to adopt that child but, again, would see the need for there to be a process here.

In the case of a surrogacy or sperm donor for a same-sex couple I'd presume there are already legalities to be followed for the bio-mother / sperm donor to sign away their parental rights so wouldn't see any issue with this becoming a "transfer of parental rights" document or an adoption process of some kind to be followed here.

Automatic granting of parental rights to a parent's spouse seems a rather poor idea to me in genera though...

clairefontaine

Sorry but gay rights and step parents rights will erode by attrition, the biologial parent's rights....to the extent that anyone can claim a "relationship with your child" even your nanny.

They are trying to push for this now with rushed legislation in my state.

Take this in the context of wider domestic/family laws and you are looking at a dangerous world ahead.

hoodwinked

clairefontaine wrote: »

Sorry but gay rights and step parents rights will erode by attrition, the biologial parent's rights....to the extent that anyone can claim a "relationship with your child" even your nanny.

They are trying to push for this now with rushed legislation in my state.

Take this in the context of wider domestic/family laws and you are looking at a dangerous world ahead.

as opposed to a dangerous world where if two women are a family with a child, and the biological parent passes, the child is taken into care as the other parent has no rights???

what we need is common sense to be applied along with the recognition that not all family unit's are mom dad and baby and each case individually assessed on the best case for the child which in the above scenario would be the living parent has legal rights to that child.

if this legislation helps that, i am all for it.

clairefontaine

hoodwinked wrote: »

as opposed to a dangerous world where if two women are a family with a child, and the biological parent passes, the child is taken into care as the other parent has no rights???

what we need is common sense to be applied along with the recognition that not all family unit's are mom dad and baby and each case individually assessed on the best case for the child which in the above scenario would be the living parent has legal rights to that child.

if this legislation helps that, i am all for it.

Two women?

Presumably there is a biological parent that can step in no? In the case of death? What about that parent?

If the other parent is deceased or abandoned the child or doesn't want to, then the bio parent can appoint a guardian.

This fiddling around with non-blood parented friends and relations, assigning automatic rights to them is a very dangerous proposition. Think it through.

How much do you trust the family courts? How about the judiciary? There is no judiciary accountibility for example. You can't sue a judge.

miss no stars

clairefontaine wrote: »

Two women?

Presumably there is a biological parent that can step in no? In the case of death? What about that parent?

If the other parent is deceased or abandoned the child or doesn't want to, then the bio parent can appoint a guardian.

This fiddling around with non-blood parented friends and relations, assigning automatic rights to them is a very dangerous proposition. Think it through.

How much do you trust the family courts? How about the judiciary? There is no judiciary accountibility for example. You can't sue a judge.

Trolling?

Let's say... Sperm bank. Child doesn't know biological father at all, no relationship with him ever existed or was ever intended to exist. Two mothers have always existed, one is still around and is the natural person to care for the child, but no father to step in. Now what? Take the child away from their home and the parent they've known and loved for their whole life and put them with strangers? All this after losing a parent already?

Another situation: Child with two parents of the same gender. One is the biological/adoptive parent, the other is unrecognized in law. The legal parent is driving along with the kid in the back seat and ends up in a serious car crash. Parent and child hospitalized. The unharmed parent has absolutely no legal relationship with the child and can't make medical decisions. That is wrong.


ETA: As a by the way, I presume in the case of the biological parent still being on the scene and the child being from a previous relationship, the same rules would apply as if the couple were heterosexual. After all, this only seeks to extend the rights that married couples have to couples with civil partnerships.

Sleepy

miss no stars - would you propose that the parental rights are granted automatically to a non-biological parent on the basis of the legal relationship they have to the biological parent? Or do you think the onus is on the state to provide a mechanism for those rights to be obtained in a timely fashion (i.e. during pregnancy in the case of a surrogacy / sperm donor or after a biological parent either relinquishes their rights or has them removed by the court)?

The latter I'd be very much in support of, the former I think could lead to a lot of problems.

pwurple

Sleepy wrote: »

miss no stars - would you propose that the parental rights are granted automatically to a non-biological parent on the basis of the legal relationship they have to the biological parent?

?? How can she propose it, it is already the case at the moment ??

The legal guardians at the moment of birth are the woman giving birth, and her husband.

If the woman got married during the pregnancy already pregnant by another man, or had an affair while married, or had IUI with donor sperm, and the biolological parent is not that man... it makes no whit of difference to the law. He, as the woman's husband, is still the legal guardian of the children born during that marriage.

The proposal is to make it the same for civil partnerships.

miss no stars

Sleepy wrote: »

miss no stars - would you propose that the parental rights are granted automatically to a non-biological parent on the basis of the legal relationship they have to the biological parent? Or do you think the onus is on the state to provide a mechanism for those rights to be obtained in a timely fashion (i.e. during pregnancy in the case of a surrogacy / sperm donor or after a biological parent either relinquishes their rights or has them removed by the court)?

The latter I'd be very much in support of, the former I think could lead to a lot of problems.

I haven't thought about it in enough detail to form any kind of considered opinion and I don't know the details of what currently exists for heterosexual couples. Like, if a woman who is married to a man gets pregnant through sperm donation (no biological link to her husband), what's the situation there? Or where the father is the sperm donor to a surrogate and the wife has no biological link to the child? I can't imagine it being overly straight forward as it is. In fact, there seems to be a proliferation of news stories on the subject at the moment.

I think, as it is with step-parents, the step parent and biological parent both have to adopt the child in cases where the second biological parent has relinquished their rights (/had them removed) in order for the step parent and the biological parent to have equal legal relationships with the child? Am I correct here?

My gut feeling on it is that in cases of one parent having a biological link to the child then equal rights for both parents shouldn't be automatic simply because there's a third person involved who also has a biological link to the child. My personal opinion would be that in cases like this where the second biological parent relinquishes their rights (as opposed to being a parent from a prior relationship who wants to continue to have a relationship with a child), they should be treated the same way as a step-parent would be where one of the biological parents relinquishes their rights: both parents (in the civil partnership) adopt to ensure that they have equal legal relationships with the child. Where the child is being adopted by gay parents who have a civil partnership, I do believe that the rights of both parents should be equal and automatic (as in, they can jointly adopt), the same as they are for straight married couples.

I suppose it all depends on what the situation is with the legislation as it stands. If it's badly flawed then extending it will mean that it's still badly flawed but more people are affected. Nice opportunity to have a look at it and actually deal with the issue that more and more families are having children through non-traditional means such as surrogacy and/or egg/sperm donation.


Edit: just saw the post above. I hadn't thought about who's rights are what in a case where a woman gets pregnant by a man who's not her husband. I think even what's stated there could be challenged in court given that the courts recently ruled that parentage is formed by genetics. Basically it's all a bit of an awful mess that really should be clarified.

Sleepy

pwurple wrote: »

?? How can she propose it, it is already the case at the moment ??

The legal guardians at the moment of birth are the woman giving birth, and her husband.

If the woman got married during the pregnancy already pregnant by another man, or had an affair while married, or had IUI with donor sperm, and the biolological parent is not that man... it makes no whit of difference to the law. He, as the woman's husband, is still the legal guardian of the children born during that marriage.

The proposal is to make it the same for civil partnerships.

It seems rather odd to me to request that an existing bad law be extended to cover others rather than repealed and replaced by better laws...

It seems like an area of law that needs to be updated to account for modern scientific realities (sperm/egg donors, surrogacy, etc.) as well as historically denied ones (husband not being father of the woman's child) etc. It really shouldn't be that complex imo: where there's a case of donor eggs, sperm and or surrogacy it seems a rather straightforward case of adoption and / or contract law and common sense case law rather than an issue of gender or sexuality to me...

I'm not sure I agree with anyone receiving automatic parental rights. A woman could have given birth to a child created with another woman's egg and her partner may or may not have any biological relation to that child regardless of their gender.

It would seem to me that the logical place for such rights to be granted would be at the registry of the birth: with the parents entered on the birth cert granted their parental rights (which could obviously be challenged in the courts afterwards in the case of a surrogate registering herself as the mother of another couple's child, paternity fraud etc.)

pwurple

I don't think the current law can be classed as a 'bad law'. It covers a massive chunk of the population adaquately. Bog standard heterosexual couples who both want to be guardians of their mutual biological children.

It's the unusual cases that are not covered, and they do say Hard Cases make Bad Law.

I completely agree there is a gaping vacuum around surrogacy, assisted reproduction etc, and I have advocated for change in this for... Cripes, it is actually 2 decades since I wrote my first letter to a TD on it. I am painfully aware of the lack of legal clarity on it, but the facts are that no political organisation wants to open that can of worms it seems. I don't think eroding the rights of the majority of parents is the way to go on that one either though. It needs specific dedicated legislation for those particular cases.


I'm afraid i chuckled at the notion of no-one with automatic guardianship rights at birth. What a ridiculous set of circumstances that would lead to, in every maternity hospital, every day. Babies often need medical decisions made at the moment of childbirth or shortly afterwards. Are they to all be left in legal no-mans-land while some beaurocratic nonsense with forms is completed around who can legally make those decisions? Unworkable.

clairefontaine

pwurple wrote: »

I don't think the current law can be classed as a 'bad law'. It covers a massive chunk of the population adaquately. Bog standard heterosexual couples who both want to be guardians of their mutual biological children.

It's the unusual cases that are not covered, and they do say Hard Cases make Bad Law.

I completely agree there is a gaping vacuum around surrogacy, assisted reproduction etc, and I have advocated for change in this for... Cripes, it is actually 2 decades since I wrote my first letter to a TD on it. I am painfully aware of the lack of legal clarity on it, but the facts are that no political organisation wants to open that can of worms it seems. I don't think eroding the rights of the majority of parents is the way to go on that one either though. It needs specific dedicated legislation for those particular cases.


I'm afraid i chuckled at the notion of no-one with automatic guardianship rights at birth. What a ridiculous set of circumstances that would lead to, in every maternity hospital, every day. Babies often need medical decisions made at the moment of childbirth or shortly afterwards. Are they to all be left in legal no-mans-land while some beaurocratic nonsense with forms is completed around who can legally make those decisions? Unworkable.

Why? You can just apply a healthcare proxy and have it on file.

pwurple

clairefontaine wrote: »

Why? You can just apply a healthcare proxy and have it on file.

If boatloads of people don't even bother their arses making a will for the most part, or even thinking about getting guardianship arranged AFTER having children, let alone before, what makes you think they will go to the trouble of appointing a healthcare proxy?

Adding bureaucratic layers unnecessarily is wasteful of money, time and effort. Or are you in favour of completely pointless quangos being set up, for everyone to skim a bit of dosh off the taxpayer?

Everyday run-of-the-mill occurrences ain't broke, so they don't need fixing. It's the unusual cases which require addressing.

Sleepy

pwurple wrote: »

I'm afraid i chuckled at the notion of no-one with automatic guardianship rights at birth. What a ridiculous set of circumstances that would lead to, in every maternity hospital, every day. Babies often need medical decisions made at the moment of childbirth or shortly afterwards. Are they to all be left in legal no-mans-land while some beaurocratic nonsense with forms is completed around who can legally make those decisions? Unworkable.

Of course, you're right here. There would be an issue regarding consent for medical procedures etc. here. That said, I'm not sure that the current system which makes wild assumptions regarding parentage and ignores a large minority is the correct path to go down either. As it stands, an unmarried father has no automatic guardianship to make medical decisions for either his partner or his child and this scenario accounts for a large percentage of births in Ireland.

Perhaps what we need is a means of registering parentage in-utero. For a bog standard heterosexual couple expecting a child this would simply be a matter of signing a form stating that they are the parents of the unborn child, for surogacy/sperm donor cases a matter of the donor / surrogate signing to relinquish their rights/responsibilities and the elective parents accepting them. (there could also be an element of medical record exchange carried out as part of this process to facilitate the child having a valid medical history).

I don't see how some level of administration can be avoided here, though I honestly can see how much extra resourcing it would require over the existing systems (post natal child registration and court cases for everything out of the "norm").

pwurple

Sleepy wrote: »

I'm not sure that the current system which makes wild assumptions regarding parentage

Come on now. Wild assumptions? That a husband and wife who have a child are the parents of their child? It's not particularly wild, tbh.


You are talking again about adding layers of unnecessary bureaucracy and administration to the normal everyday occurrence with this in-utero registration idea. Over-regulating normality is generally considered to bad practice, mainly because it is terribly wasteful of resources. There is no gain to be had there over the current system for the majority of people. And you are adding several disadvantages for all groups by creating it. Cost being the main one, and there is also the horrendous heartache of forcing people to do this for an in-utero child... Miscarriage, stillbirth and all the other things which go wrong with pregnancy. An estimated 20% of known pregnancies do not result in a live baby.

Consider the practicalities of such a form for a minute. The child doesn't have a name yet, doesn't have a date or place of birth, no gender associated or identifying features of any kind, can't sign or foot/fingerprint. How are they to be identified on this form? Blob A, who may or may not be born at an unknown future date, in an unknown place?
The whole thing would need to be repeated after the birth again.... you know, like a guardianship application, which already exists. It's doubling the administration for unmarried partners, and adding two layers of forms for married partners, where none currently exists.


Unmarried fathers I have some sympathy for, because they generally tend to be merely ignorant of the rights they have relinquished, rather than it being a deliberate choice (although sometimes they have made it deliberately). Some people are so hung-up with weddings being this enormous party, or even misguidedly believe it is something religious, that they often miss the entire point of what it really is. Creating a legal document which makes you a legal relative of your spouse, with all the ensuing consequences for any children.

clairefontaine

pwurple wrote: »

If boatloads of people don't even bother their arses making a will for the most part, or even thinking about getting guardianship arranged AFTER having children, let alone before, what makes you think they will go to the trouble of appointing a healthcare proxy?

Adding bureaucratic layers unnecessarily is wasteful of money, time and effort. Or are you in favour of completely pointless quangos being set up, for everyone to skim a bit of dosh off the taxpayer?

Everyday run-of-the-mill occurrences ain't broke, so they don't need fixing. It's the unusual cases which require addressing.

You can just assign one in the hospital. Ive done it many times. Very simple.

No yeah, minimise bureaucracy if at all possible.

Sleepy

pwurple wrote: »

Unmarried fathers I have some sympathy for, because they generally tend to be merely ignorant of the rights they have relinquished, rather than it being a deliberate choice (although sometimes they have made it deliberately). Some people are so hung-up with weddings being this enormous party, or even misguidedly believe it is something religious, that they often miss the entire point of what it really is. Creating a legal document which makes you a legal relative of your spouse, with all the ensuing consequences for any children.

And what of the scenarios where either (or both) parent(s) want no legal relationship to exist between them? Should the father (or non-biological mother) have to rely on the honesty of the woman birthing the child to grant them their rights?

While it may not exactly be a "wild" assumption to assume a woman's child is automatically her husbands, it's certainly one that's open to being incorrect and I've seen enough worrying statistics out there regarding the number of men who are conned into raising another's child to consider it something we should avoid.

While perhaps you have a point regarding the cost of administration (and I very much agree that any increase of bureaucracy or HSE admin is to be avoided), I think that the existing system looks at this very much through the lens of the birth mother as the primary parent/caregiver and creates the scenario where a father's access to his child is something he's gifted by the mother rather than something he and the child have a fundamental right to.

Since that's both fundamentally wrong and out-dated by advances in medical science, I tend to favour scrapping the current system in it's entirety and replacing it with one that can correct the inherrant sexism of the status quo whilst providing provision for the new reality.

Obviously the ideas I'm tossing out in this thread are poorly thought out ideas for how this new system might look: I'm neither a legislative expert nor devoting much time to the ideas. I tend to favour scorched earth approaches to implementing new systems as both in my professional experience implementing software and my observations of policy-driven changes to systems (e.g. Health Boards to HSE, PPARS, etc.) incrementally adapting existing systems with a piecemeal or patchwork approach rarely seems to get the desired result.

clairefontaine

Sleepy wrote: »

And what of the scenarios where either (or both) parent(s) want no legal relationship to exist between them? Should the father (or non-biological mother) have to rely on the honesty of the woman birthing the child to grant them their rights?

While it may not exactly be a "wild" assumption to assume a woman's child is automatically her husbands, it's certainly one that's open to being incorrect and I've seen enough worrying statistics out there regarding the number of men who are conned into raising another's child to consider it something we should avoid.

While perhaps you have a point regarding the cost of administration (and I very much agree that any increase of bureaucracy or HSE admin is to be avoided), I think that the existing system looks at this very much through the lens of the birth mother as the primary parent/caregiver and creates the scenario where a father's access to his child is something he's gifted by the mother rather than something he and the child have a fundamental right to.

Since that's both fundamentally wrong and out-dated by advances in medical science, I tend to favour scrapping the current system in it's entirety and replacing it with one that can correct the inherrant sexism of the status quo whilst providing provision for the new reality.

Obviously the ideas I'm tossing out in this thread are poorly thought out ideas for how this new system might look: I'm neither a legislative expert nor devoting much time to the ideas. I tend to favour scorched earth approaches to implementing new systems as both in my professional experience implementing software and my observations of policy-driven changes to systems (e.g. Health Boards to HSE, PPARS, etc.) incrementally adapting existing systems with a piecemeal or patchwork approach rarely seems to get the desired result.

Have you got any idea how much it costs the state to run paternity tests? Never mind an in utero one?

Very simple solution. Baby is born. Both parents sign an affadavit of paternity at the hospital. Affadavit is submitted to birth records. If either party contests paternity, they can go to court and get their test done. Parentage goes on the birth cert. Rights for both parties established. Simple.

The thing about this legislation, is that gay and lesbians are a very small percentage of the population, and they are going to loosen the rights of biological parents across the board.

Sleepy

Claire, I wasn't in any way suggesting paternity tests as a standard.

The problem with the scenario you describe is that if the birth mother isn't on good terms with the father, it's unlikely he'll be there in the hospital to obtain his rights (as she won't have told him she's having the baby at that point) and there's no compulsion on her to provide his identity.

I don't agree that any new system would necessarily loosen the existing rights of biological parents. Unless one thinks that a birth mother should have the right to refuse to acknowledge the rights of the biological father or those she's acting as a surrogate for I can't see how any properly designed new system would involve this...

clairefontaine

Sleepy wrote: »

Claire, I wasn't in any way suggesting paternity tests as a standard.

The problem with the scenario you describe is that if the birth mother isn't on good terms with the father, it's unlikely he'll be there in the hospital to obtain his rights (as she won't have told him she's having the baby at that point) and there's no compulsion on her to provide his identity.

Yes that is true, but there is no way around that.

Sleepy wrote: »

I don't agree that any new system would necessarily loosen the existing rights of biological parents. Unless one thinks that a birth mother should have the right to refuse to acknowledge the rights of the biological father or those she's acting as a surrogate for I can't see how any properly designed new system would involve this...

Also, you need to weigh it up with precendent. If you have a law that can petition for court ordered in utero paternity testing, where is the line when it comes to bodily integrity?

The more you ask the state to legislate for you, the less parents rights you have, mother or father. Ireland already has the children's act, which gives the state superior rights.

This may not appear so frightening in a country that is slack on enforcement, but if it wasn't so slack and they did enforce what they actually legislate, you would and should be wary.