The law has a way of dealing with contracts which it holds are illegal or immoral. It can refuse to enforce them. In one infamous case in the 19th century, a coach builder hired out a coach to a woman in prostitution for the purpose of enabling her, in the restrained words of one of the judges, "to make a display favourable to her immoral purposes." The coach builder later sued her for monies payable under the agreement. The courts ruled that he couldn't recover the price agreed, on the basis that he had full knowledge of the nefarious purposes for which his coach was being used.
Are modern judges more reluctant to consider the moral dimensions of contracts? Just last week, a biological father who sought guardianship and access rights to his child lost his case in the High Court.
In refusing to grant the man, Mr A, any status regarding the child, Mr Justice John Hedigan looked at a contract drawn up between Mr A and the lesbian couple who were acting as the child's parent. Mr A and the couple had entered into an arrangement in which he would act as a sperm donor for the couple. This arrangement was codified as a contract between the parties, with Mr A agreeing that he would act as "favourite uncle" to the child.
He would be welcome to meet the child and parents at "mutually convenient" times. However, Mr A was not to have any input regarding the raising of the child. At a time judged appropriate by the lesbian parents of the child, he or she would be informed as to the identity of his or her parents. Mr A was to have to no financial or other responsibilities to the child. Neither was the extended family of Mr A to have any contact with the child save at the couple's discretion.
In all of this, the rights or welfare of the child appear to have been something of an afterthought. The lesbian couple, both of whom insisted on being treated as the parents, even though only one of them was the biological parent, felt that the child should have knowledge of his or her biological father. But there was no acknowledgment of the child's right to have each natural parent involved in his or her upraising.
You might think that such an admission makes this an ‘immoral’ contract, and as such incapable of being enforced. After all, we have here a contract concerning a child, and yet it is the needs, rights and responsibilities of the adults concerned, rather than the child, which seem to be front and centre, with the child’s rights relegated to the margins.
But the judge gave great weight to this contract, treating it as a perfectly valid document. He dismissed the relevance of the biological link between the child and its father, saying this was of little weight, and found in favour of the the lesbian couple.
In the wake of the ruling, there was plenty of hand wringing from some predictable quarters bewailing the lack of legislation in the area of Assisted Human Reproduction (AHR). Since the emergence of IVF in the mid-70s, there has been an explosion in various types of reproductive procedures, and the law has not kept pace. Currently, AHR here is unregulated - hence the above court proceedings.
Undeniably, this failure to provide a legal framework cannot continue. But what should legislation permit, and what should it require?
In 2005, the Government-appointed Commission on Assisted Human Reproduction addressed the question of who should be allowed to access such services. The answer it gave was that services should be available "without discrimination on the grounds of gender, marital status or sexual orientation". The only qualification was that this should be "subject to consideration of the best interest of any children that may be born".
Such concern about the best interests of the child is laudable. But when the CAHR came to consider what those interests might be, it found that they were subservient to considerations more suggestive of adult rights. The report concludes that neither the genetic link, nor the gender of the parents, is of much importance.
Instead, the report insists that the ‘quality of parenting’ is the most important factor. But the quality of the reasoning used to reach this conclusion was somewhat suspect.
For example, in Appendix VII of the report, which specifically considered the issue of the best interests of the child, Professor John Harris of Manchester University was cited to the effect that there were "no reliable criteria for adequate parenting, and thus, no criteria which can be used to guarantee the best interests of the child".
This is a classic straw man argument. Nobody is suggesting that public policy in this area can ever guarantee the best interests of a child. What policy ought to do is to try to maximise the chances that a child’s welfare is protected. Similarly, the suggestion that there are "no reliable criteria for reliable parenting" suggests that family form is irrelevant to a child's welfare. This ignores the evidence that children tend to fare better on a range of measures, from employment to psychological well-being, when raised inside a married couple.
Professor Harris, it might be noted, is a bio-ethicist who argues that infanticide is justifiable in some circumstances. To bolster this view, he points out that, if you believe that abortion is acceptable, then it is unreasonable to be opposed in all circumstances to infanticide. It is not plausible, he argues, "to think that there is any moral change that occurs during the journey down the birth canal". In a strict logical sense, he might not be far wrong. It’s his acceptance of abortion and infanticide that is so chilling. It’s rather troubling to think that this is the pedigree of moral thought that informed an Irish Government-appointed body on sensitive questions involving life and death.
The CAHR report also cited research to show that children raised by same sex parents suffer no ill effects. This was the very same research that another High Court judge, Ms Elizabeth Dunne, considered in the Zappone/Gilligan case. Judge Dunne rightly said that the State ought to proceed cautiously in respect of such evidence.
It is also worth considering the assertion that biology is not an important factor for children in terms of their relationship to their parents. This actually cuts against one of the very reasons for Assisted Human Reproduction, namely that people are enabled to have children "of their own". Clearly, those availing of sperm donor services feel that a biological link is very important. It shouldn't be so difficult to see that the same link might be of huge importance to the child as well.
If all this is too coldly logical, then perhaps our policy makers might listen to some children who have been born of donor parents. Their verdict is that biology does matter. Many such children are now coming of age, and they have some tragic stories to tell.
A number have gone into print to explain their feelings of hurt and abandonment, but perhaps one of the most tragic is an anonymous 14 year year old girl who wrote to an agony column in the US. She said: "It scares me to think I may have brothers or sisters out there, and that he (my father) may not care that I exist". She continued: "I don't understand why it's legal to just donate … when a child may be born."
In last week's case, the lesbian couple took steps to ensure at least that the sperm donor father was not anonymous. The CAHR recommendations also propose that anonymous sperm donation be forbidden. But is it sufficient that children in this situation simply be told at age 18 that their father was a sperm donor? Should our laws not strive to ensure that children, where possible, are raised by their natural parents?
When liberal divorce laws were first introduced in the US, studies emerged indicating that divorce had no serious negative consequences for children. Some 40 years on, virtually nobody makes that claim anymore. The truth came out after a massive social experiment, in which children, often against their will, were the subjects. Could we not avoid going down the same road again?