“Modern Families - The Right to be Recognised”

By Orla Leahy, News EditorThe Free Legal Advice Centre (FLAC) in UCC held an event at 7 pm, on Tuesday, October 19th, to explore the right of modern families to be recognised. David Giles, chairperson of FLAC UCC says that the event was inspired by a London based podcast, the Gram Fam. He highlighted that FLAC has had a strong role to play in the history of our Irish legal system, having engaged in strategic litigation to facilitate access to justice, such as taking the first case for transgender rights to the Supreme Court, and that he’d “like to think that we at a local level can still have a platform for the underdog of the legal system.” Ranae Von Meding, the guest speaker on the evening, is the CEO of a non-profit, Equality for Children. Von Meding became an activist in the field of children’s equality when as a same sex parent, only either herself or her partner could be legally recognised as a parent. The legislation did not exist to facilitate the recognition of both partners as parents. David Giles drew attention to the fact that “based on her legal position provided to her by the State, access to justice wasn’t there.” FLAC seeks to challenge such access inequality to justice through events such as this.Professor Conor O’Mahony, who also spoke on the evening, is a Senior Lecturer at the UCC School of Law, is the Special Rapporteur for Children, and recently published his report, “Review of Children’s Rights and Best Interests in the Context of Donor- Assisted Human Reproduction and Surrogacy in Ireland.”In 2015, the referendum on same sex marriage was passed by the people. Von Meding recalls the feeling of victory, the feeling that “anything was possible.” She and her now wife celebrated on the day with both marriage plans and organising IVF Clinic appointments to conceive their first child. Unfortunately, shortly afterwards, they discovered that they could not avail of Reciprocal IVF at the time in Ireland, which would allow Von Meding’s wife to be the biological mother, and Von Meding the birth mother. They ended up moving to Spain to avail themselves of the treatment and were astounded by the lack of supports available to them whilst undergoing treatment. With Von Meding seven month’s pregnant, the couple received the devastating news that only the carrier could be the legal parent. This meant that Von Meding’s wife, though the biological parent, was, and continued to be, until after 5 years of legal challenges, Wednesday last, October 20th, a legal stranger to their child. Von Meding told the audience that, “every single day without fail, there is something, something happens that reminds us that our family is treated differently, that our children are treated differently.”After the birth of their second child, she began a petition “calling on then Minister for Health, Simon Harris to look at the Children Family Relationships Act legislation, to expand it and to protect more families, and children.” The Act had been passed in 2015 but was still awaiting enactment at the time of the petition. When the petition hit 20,000 signatures, Von Meding received a personal invitation from then Minister Harris, to attend a personal meeting. Inspired by the level of engagement with her petition, she established Equality for Children with the help of other families facing a similar predicament. The core objective of her organisation is to create equal legal protection for every child, regardless of their background. The Act was passed after the meeting but serious gaps continued to exist. Professor O’Mahony acknowledged that the legislation faced added complications in that it encompassed the Department of Health, the Department of Children, and the Department of Justice. Therefore, any amendments or changes to the legislation required the approval of not only one, but all three departments. A major issue, he noted, is that donor assisted reproduction is recognised under the Act, but surrogacy is not. Professor O’Mahony further observed that surrogacy is a “legal void” in Irish law and consequently reviewed other jurisdictions’ laws as part of his recent report.  On another note, donor assisted reproduction may be availed of by heterosexual and female homosexual couples. Professor O’Mahony drew attention to the fact that barriers still exist. Firstly, the act lays out prescriptive criteria under which both people in the couple can be officially recognised as the child’s legal parents from birth. For example, to achieve such recognition, the parents must avail of clinical procedures that maintain complete records, rather than avail of home procedures. The second issue concerns timing. Should the child have been born prior to the Act’s enactment, non-donor parents are excluded from availing of the criteria to achieve legal parentage recognition from birth, as opposed to after the enactment of the Act. Overall, Professor O’Mahony noted that “the gaps in the law have significant implications for children’s rights, including the best interests of the child, the right to family life, and the right to identity.”It was only earlier this year that the first female same-sex couple were finally recognised as legal parents from birth, chairperson, David Giles, observed during the event. As Special Rapporteur for Children, Professor O’Mahony’s report lays out a series of recommendations that best protect the rights of the child. He advises tightening the gaps in current legislation, such as recognising that those who avail of at-home procedures with furnishable reasons should also be recognised as legal parents, implementing official surrogacy laws which adopt international best practices, and overall setting up a strong domestic system to regulate what we have the power to - Irish standards. Von Meding said that from Equality for Children’s perspective, the report gave them “everything they wanted and then some”. She added that occasionally, it felt like they were “taking ten steps backwards” but that this report offered them great hope, functioning as a big step forward as they had something tangible and concrete to offer the government as part of the formation of a new bill. Questions and comments from attendees highlighted other issues, including the large cost barrier. Surrogacy can often be in excess of €100,000. Von Meding further underlined the issue by stating that the only possible way to reduce the cost is to avail of a tax refund worth 20%. She would love to see the introduction of state-funded assistance to couples. This topical and hugely important event emphasised that the process to introduce new legislation in this field is an ongoing process. Professor O’Mahony’s report and Von Meding’s groundbreaking activism form an integral part of this legislative process. The power of sharing stories leads to the “growing of legs” in the movement, Von Meding observed. She is motivated by the fact that she wants to provide others with the support and information she did not have access to when she and her wife were undergoing treatment. She recognised that “[she has] had to learn about a lot of things that [she] should never have had to learn about.”Von Meding concluded the event with her dream for the future, “I just hope that one day we get to the stage where it is not taboo to have your kids through donor assisted reproduction, or through surrogacy, and that once you have your kids, you are all protected as a legal family.” She ended with one final powerful statement, “no one is equal until we all are.”Professor Conor O’Mahony’s report, “Review of Children’s Rights and Best Interests in the Context of Donor- Assisted Human Reproduction and Surrogacy in Ireland” may be read on the Department of Children’s website. Equality for Children, of which Ranae Von Meding is CEO, may be found on Facebook, Twitter, and Instagram, and also have their own website.