The Legal Recognition of Same-Sex Relationships: Emerging Families in Ireland and Beyond

Description

This book analyses the key issues affecting same-sex families in Ireland and beyond today: marriage; formalised and non-formalised same-sex relationships outside of marriage; parental rights for same-sex couples with donor-conceived or surrogate-born children; and the protections afforded to same-sex families under European human rights law. It critically examines the Irish and Australian citizen-led approaches to achieving marriage equality, which made Ireland and Australia the first and second countries in the world, respectively, to extend the institution of marriage to same-sex couples on foot of a popular vote. It analyses the pragmatic and symbolic effects of civil partnership, which was the premier means of formalising same-sex unions in Ireland. Ireland’s hurried ‘divorce’ from civil partnership in the aftermath of marriage equality is examined in light of evidence from the U.K. indicating that this mode of relationship recognition remains popular with both same-sex and opposite-sex couples in that jurisdiction. The book goes on to consider the legal position of same-sex couples who are parenting children born via assisted reproductive techniques (ARTs) like donor- assisted human reproduction (DAHR) and surrogacy. Finally, it looks at the impact (or lack thereof) of the European Convention on Human Rights (ECHR) as regards the protection of same-sex relationships, marriage and parental rights for same-sex couples. It does this to determine what is required of Ireland and other states party to the ECHR to comply with European human rights obligations when it comes to legally recognising couples, and parents, of the same sex. Foreword by Gerard Hogan Contents 1. Introduction 2. Marriage Equality by Popular Vote: The Irish and Australian Experiences I. Introduction II. The Contours of the Constitutional Family Prior to Marriage Equality in Ireland III. The Legislative Prohibition on Same-Sex Marriage IV. The Legislative History of the Civil Registration Act 2004, s 2(2) V. Same-Sex Marriage in the Irish Courts: Zappone v Revenue Commissioners VI. Legal Recognition of Same-Sex Relationships Post-Zappone VII. Would the Supreme Court have Declared Same-Sex Marriage Legislation Unconstitutional? VIII. Constitutional Convention IX. Marriage Referendum X. Marriage Equality in Australia XI. Plebiscites, Referenda, Political Opportunism and Human Rights Issues XII. The Potential Pitfalls Associated with Australia’s Postal Plebiscite and Ireland’s Marriage Referendum XIII. An Australian Referendum on Marriage Equality? XIV. Conclusion 3. Same-Sex Relationships Beyond Marriage: Civil Partnership and Cohabitation in Ireland I. Introduction II. The Constitution and Non-Marital Unions III. The Disparate Legislative Treatment of Non-Marital Couples in Ireland pre-2010 IV. Progressing Towards Civil Partnership V. An Overview of the Rights and Duties of Civil Partners VI. Differences between Civil Partnership and Marriage VII. The Recognition of Foreign Civil Partnerships and Same-Sex Marriages VIII. The Dissolution of Foreign Civil Partnerships and Same-Sex Marriages IX. Civil Partnership: Separate, but Equal? X. Civil Partnership in Post-Marriage Equality Ireland XI. The Regulation of Cohabitation in Ireland XII. Cohabitation Law Reform in the UK XIII. Qualified Cohabitants and the Relief Availablein Ireland under the 2010 Act XIV. Cohabitants’ Agreements XV. Conclusion 4. Parental Rights for Same-Sex Parents of Surrogate-Born and Donor-Conceived Children: Forging a Legal Framework for Ireland I. Introduction II. Same-Sex Parenting and the Welfare of the Child III. Parental Rights for Same-Sex Couples: The Children and Family Relationships Act 2015 IV. Towards Regulating Domestic Surrogacy Arrangements under Irish Law V. A Critique of the Hybrid Model for Regulating Domestic Surrogacy in Part 7 of the Health (Assisted Human Reproduction) Bill 2022 VI. The Pre-Conception State Approval Model for Regulating Surrogacy VII. The Child’s Right to Knowledge of Identity – A Comparison between the Post-Birth Parental Order and Pre-Conception State Approval Models VIII. The UN Special Rapporteur’s Positionon Surrogacy Arrangements IX. Altruistic Surrogacy Arrangements in the UKand Ireland: In Principle and in Practice? X. Proposals for Allocating Parentage via Pre-Conception Authorisation in the UK and Ireland XI. The AHRRA – An Administrative Route to Legal Parentage XII. The Verona Principles XIII. International Surrogacy XIV. Should Ireland Follow the Approachto Surrogacy Law Reform in the UK? XV. Donor-Assisted Human Reproduction XVI. Non-Clinical DAHR Procedures XVII. Alternative Proposals for Regulating Non-Clinical DAHR XVIII. Conclusion 5. Same-Sex Relationships, Marriage and Parental Rights under the ECHR I. Introduction II. The Margin of Appreciation III. Article 8 IV. Article 14 V. Same-Sex Relationships and the ECtHR: Respect for Private and Family Life, but not yet Wedded Bliss VI. Consensual Same-Sex Sexual Activity and Relationships as Private Life under Article 8 VII. Same-Sex Couples and Family Life under Article 8 VIII. The Evolution of the Right to Marry under Article 12 IX. Same-Sex Marriage and Article 12 of the ECHR – Schalk and Kopf v Austria X. Second-Parent Adoption by a Same-Sex Partner and the ECHR XI. Surrogacy and the ECHR XII. Implications of ECtHR Case Law for Ireland's Approach to Surrogacy XIII. Conclusion 6. Concluding Remarks Bibliography Index