McD. v L.

The appellant, a gay man, entered into an agreement with the respondents, a lesbian couple in a civil partnership, to donate sperm to the respondents so they could have a baby. It was agreed that the respondents would have full care and custody of the child, effectively as parents. They were to be fully responsible for the child’s upbringing, and the appellant, the sperm donor, would be, at most, considered a “favourite uncle.” It was explicitly agreed that the appellant would not have any responsibility for the child’s upbringing and would not seek to influence it. However, following the child’s birth, he attempted to assert rights as the father. While not seeking custody, he sought to be appointed as a guardian of the child and to have rights of access. The respondents opposed his application, and it was their intention to move to Australia, which the appellant sought an injunction to prevent. This case constituted the first time in which the superior courts of Ireland dealt with the matter of parenthood in assisted reproduction, and both the High Court and Supreme Court took different views of the case. McD’s application to be appointed guardian under the Guardianship of Infants Act 1964 was unsuccessful in the High Court, which found that the donor had acted dishonestly and deliberately misled them as to his intentions. Emphasising the child’s best interests, the High Court, while acknowledging the importance of the blood link between donor and child, found that this was a rare case in which it was not in the best interests of the child to have a relationship with both of his biological parents. The High Court rejected the applications for guardianship and access, finding that granting them would result in too great a cost to the child: the “loss of a tranquil and calm upbringing.” The Supreme Court took a different approach, however, sympathising with the donor’s perspective. Importantly, the Supreme Court ruled that, under Irish law, the lesbian couple was not a family. There was a strong rejection of the idea of ‘de facto families’ having any legal status or rights in Irish law. This concept was relied on by the High Court, where weight was afforded to the position of the ‘de facto family’ consisting of the couple and the child. In this vein, the Supreme Court rejected the applicability of Article 8 of the European Convention on Human Rights. The Supreme Court agreed that it was not in the best interests of the child that McD. be appointed guardian, but held that he should have access rights, and remitted the matter to the High Court for determination of the terms of such access. The case is also important regarding the relationship between Irish law and the ECHR, with the Supreme Court highlighting that the Convention is not directly applicable in Irish law and taking a restrictive approach in relation to its interpretation and application. The Supreme Court also warned against domestic courts ‘outpacing’ the jurisprudence of the European Court of Human Rights.