Jackson J delivered an interesting judgement in B.G. v J.C. in relation to an Order for a Declaration of Parentage and Guardianship in respect of two twin children in the case of a genetic material contribution for conception.
In Ireland, a woman who gives birth to a child is the lawful mother regardless of whether or not there is a genetic link between them. A man who provides genetic material for the conception of a child is considered in Irish law to be the father of that child. In circumstances where the parties are not married, the mother remains the lawful guardian of the child. Contrastingly, the father is required to apply to be the guardian of the child.
The aforementioned case involved two parties who were not in a relationship at the time of, or before, the birth of twins. The Applicant, who has since married, is a homosexual who sought to have children by way of providing genetic material. The Respondent, who is unmarried, also sought to have children and was elated when discovering that the Applicant was agreeable to commencing the process.
However, shortly after the birth of the children the Respondent no longer desired to involve the Applicant in the upbringing of the children. The Applicant then sought an Order for a Declaration of Parentage and Guardianship. From the outset of the proceedings, the Respondent proved to be oppositional towards both the Court and the Applicant by not attending hearings despite the option of attending remotely. In addition, the Respondent refused to provide DNA samples as she did not believe that the Applicant was the father and that he was merely a “sperm donor”. In light of this, the Court was introduced to text messages between the two parties which illustrated their desires to assist each other in conceiving a child. One of the text messages included the parties referring to themselves as ‘parents’, and the Respondent was found to have said, “At the time I thought you would be such a nice man to be the dad, we can do it !!”
Jackson J stated that the Respondent’s actions proved not to be in the best interests of the children which is mandated under Section 31(2)(a) and 31(2)(j) of the Guardianship of Infants Act, 1964. The latter, however, provides for parents to encourage a stable relationship between the children and the other parent which the Court believed the Respondent was obstructing.
The burden of proving parentage is on the Applicant and in this case the Court was satisfied that the Applicant had discharged the burden. In that regard, the Applicant was granted a Declaration of Parentage. Jackson J based her decision on the following: –
- The failure on the part of the Respondent to comply with the Orders in relation to DNA testing;
- The evidence of the sister of the Respondent that it was assumed in the Respondent’s community that the Applicant was indeed the father of the children;
- The text messages between the two parties which support the genetic link between the Applicant and the children and the indication that the parties were on a joint endeavour.
Jackson J also emphasized the Respondent’s lack of contention to the evidence that suggested that the Applicant was the father in refusing to provide scientific testing.
The second issue in this case was whether the Applicant could be considered a guardian of the children. The Court found that the Order which was best for the children in these circumstances was to grant the Applicant interim guardianship until the next hearing date.
For further information on this topic or for any other family law related advice please do not hesitate to contact Brendan Dillon or Emma Dillon on 01 296 0666.
