Irish Supreme Court Asserts that Constitution Trumps European Convention on Human Rights

By Piero A. Tozzi, J.D. | December 21, 2009

From the Land of Saints and Scholars comes this report and analysis that a father – even one who is the sperm donor for a child being raised by the mother and her lesbian partner – has certain rights when it comes to his child, consistent with Ireland’s Constitution.

In a matter of significance, a five-judge panel of the Irish Supreme Court in In re J. McD and P.L. and B.M. (Record No. 186/2008) overruled an intermediate High Court decision that denied the father guardianship and access to his son. The lower court ruling was based in part on Article 8 of the European Convention of Human Rights (ECHR), which provides for a right to family life.

Not so fast, said the Supreme Court. The Irish Constitution does not recognize that a child and a lesbian couple constitute a “family,” and there is no recognition of a fabricated “de facto family” in Irish law. Moreover, there was no basis for finding that the ECHR had any bearing on this case.

The Supreme Court noted that the lower court decision had not given sufficient weight to the fact that a child benefits from having a father, and ordered that the father be given access to his son. Further, a biological father, even one who is a sperm donor, has rights, and may apply to be appointed guardian under Ireland’s Guardianship of Infants Act. Lower courts must review the specific facts before them on a case-by-case basis to determine what would be in the best interests of the child.

All this comes in the wake of the Italian Constitutional Court sending a warning shot across the bow of the European Court of Human Rights that the Italian Constitution trumps any rulings handed down by the Strasbourg-based court inconsistent with Italy’s governing charter. (The Irish Supreme Court decision, by the way, has attracted notice in Italy as well…)

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