Last week the Irish Supreme Court handed down a significant decision in relation to the rights of gays and lesbians living in Ireland. In McD v. L [2009[ IESC 81, the Supreme Court held that in a dispute over legal guardianship and access, a male biological parents (and sperm donor) was in principle entitled to statutory rights of access, even though this ran contrary to a prior agreement with a child’s current parents and guardians (lesbian couple) and their wishes. (The issue of the child’s actual best interests was reminded for further determination by the High Court). The decision is obviously significant for what it does not do for the recognition of same-sex relationships in Ireland, but also for the scope for national-transnational “dialogue” under the European Convention on Human Rights. Contrary to the High Court, the Supreme Court held that the right to family life under Art 8 of the Convention was not relevant to the interpretation of the relevant statute, and in any event, according to some justices, as of now Strasbourg jurisprudence did not extend to recognizing same-sex couples and their children as a family unit entitled to de facto protection under Art 8. It was also not for the Irish High Court, according to these justices, to “anticipate” where Strasbourg jurisprudence might go in this context in the future (see e.g. Fennelly J. par 94).
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