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

Ireland’s Supreme Court has handed down a “landmark decision” in favor of the natural family, asserting that Ireland’s constitution trumps the European Convention on Human Rights (ECHR). The decision holds a child generally benefits from having a connection with his biological father – even one who is a sperm donor for a child being raised by the mother and her lesbian partner.

A five-judge panel of the Irish Supreme Court unanimously overruled an intermediate court decision that had denied a homosexual sperm donor guardianship and access to his son. The lower court ruling was based in part on Article 8 of the ECHR, which provides for a right to family life, and had held that the lesbian couple had constituted a “de facto family” with rights under the ECHR.

The Supreme Court, however, held that the Irish constitution does not recognize that a lesbian couple with a child constitute a “family,” and there is no recognition of a fabricated “de facto family” (either homosexual or unmarried heterosexual) in Irish law.

Chief Justice John Murray clarified that the ECHR is “not generally part of [Ireland’s] domestic law,” and the intermediate court “had no jurisdiction to apply Article 8 of the Convention to the status of the respondents and the child.” Indeed, the Court noted that the lower court judge – who previously had sat on the European Court of Human Rights for nearly a decade – had unilaterally sought to expand ECHR jurisprudence, given that the European Court has yet to find that same-sex partnerships fall within Article 8 of the convention.

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 the child. Further, a biological father, even one who is a sperm donor, 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 a child’s best interests.

David Quinn, of the Dublin-based Iona Institute, calls the decision “significant,” both for upholding the importance of the natural family’s “biological link” and the primacy of national law over the ECHR.  While Quinn criticized another recent decision of the Court holding that frozen embryos were not “unborn” persons entitled to the same protection implanted embryos are guaranteed under Ireland’s pro-life constitution, he noted that there the Court appealed to Ireland’s parliament to clarify the issue.

Such deference to popular sovereignty is a trait of Ireland’s Supreme Court. Observers note that it was the only high court to direct that the Lisbon Treaty be subject to a popular referendum in advance of ratification, ruling that certain of the treaty’s provisions amounted to an amendment of Ireland’s constitution and therefore required the direct consent of the Irish people.

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