Accommodating family diversity and social parenthood within constitutional conservatism: A comparative analysis of Irish and Polish Law

Abstract

I. Introduction

In Ireland and Poland, explicit constitutional protection of the family and parental rights came to be interpreted conservatively as a barrier to the legal recognition of diverse forms of family life and the advancement of children’s rights. Polish law remains very limited. Legal parentage is traditionally understood as reflecting a biological relationship, and parental authority over a child can only be exercised by legal or adoptive parents of different sexes. This means that many children are being cared for by adults to whom they are legal strangers but who act as their social parents.¹ In contrast, Ireland has recently expanded the definition of legal parentage to include LGBT+ families and has allowed non-legal parents to become legal guardians of children in a wide variety of circumstances, despite an inherently conservative constitutional understanding of the family.

State failure to give meaningful legal recognition to social parents’ important role in children’s lives is a failure to prioritize the best interests of the child within a functioning family. However, radical reform towards a truly child-centred family law is politically difficult to achieve. Developments in Ireland demonstrate how incremental legal changes, based in pragmatism, adult autonomy, and children’s rights, can accommodate family diversity within constitutional conservatism and extend protection to social parenthood.

Existing literature describes a ‘social parent’ as ‘an adult who acts like a parent but who is unconnected to the child through childbirth, marriage, or adoption’,² including persons not ‘genetically or legally related to a child but who perform many of the duties of a parent’.³ We suggest that legal reform needs to consider three distinctive types of social parents; the child’s primary parental caregivers from birth who are not recognized by law (e.g. many LGBT+ parents), adults co-parenting with the child’s legally recognized parents (new partners or a multi-parenting arrangement), and adults parenting a child because the primary parents are absent or unable to care for their child. Developments in sociology and psychology demonstrate that, in all scenarios, it is in the best interests of the child to legally recognize their relationship with their factual caretaker, even if the child has a different legal parent or parents. Children can develop an attachment to a person who is not biogenetically related to them and perceive that person as a parent or a very close figure.⁴ Empirical data suggest that children who have experienced disrupted relationships or broken bonds with their factual caregivers are more likely to demonstrate poor mental and physical health outcomes in adulthood.⁵ State failure to give legal recognition to social parents’ important role in children’s lives negatively impacts their ability to fulfil factual parenting functions⁶ and undermines children’s rights to social identity and de facto family life.

Many jurisdictions have begun to recognize social parentage, altering their legal approach to establishing parentage and/or allocating parental responsibility to ensure that the best interests of children are paramount. Several US states and Canadian provinces allow parental status to be granted to a social (de facto) parent on the basis that they care for the child, the child treats them as a parent, and it is in the child’s best interests.⁷ This can lead to the recognition of so-called ‘multi-parenthood’ where more than two people are recognized as legal parents.⁸ In Europe, allowing the recognition of blended families and social parenthood by granting parental responsibilities and rights to the child’s caregivers who are not recognized as the child’s legal parents is an emerging trend.⁹ However, such change can be difficult to achieve in legal systems with conservative political approaches to family law and traditional legal structures that prioritize the marital family and parental rights.

Using Ireland as a case study of how family recognition can be extended incrementally despite a constitutional commitment to conservative values, it argued that the Polish legal framework could likewise accommodate family diversity and social parenthood without the need for radical structural change. This analysis may also be valuable for other countries where family diversity is not acknowledged.¹⁰

Comparative family law has historically been viewed as problematic by functionalists¹¹ because family law cannot be separated from political culture. This case study deliberately takes political culture into account in choosing Ireland as a comparator to Poland to critically explore¹² the possibilities for progressive legal change. While there are important contextual differences between Ireland and Poland, both are constitutionally committed to conservative family structures and thus experience tension between the obligation to protect traditional parental rights and the need to safeguard the rights of children in all families. Employing a critical comparative law approach, this article examines how broader recognition of social parenthood can be accommodated within the legal protection of traditional parental rights.

The comparative discourse on the extension of the legal recognition of the family is particularly relevant due to the establishment in 2024 of the Commission for the Codification of Family Law in Poland, which is the expert law reform body affiliated with the Minister of Justice.¹³ One of its main objectives is ‘to prepare normative acts of fundamental importance for the system of family and guardianship law, taking into account the matters necessary for the harmonisation of Polish law with the law of the European Union’.¹⁴ This ‘European context’ makes it clear that the Commission should explore the legal means for the protection of LGBT families and social parenthood available within the current constitutional framework. The Polish Commission should therefore pay particular attention to recent developments in Irish law. These have been made possible by the work of the Irish Law Reform Commission, which has considered comparative developments feasible within domestic constitutional constraints.¹⁵

II. The constitutionalization of Irish and Polish family law

We characterize Irish and Polish family law as highly constitutionalized. The Irish Constitution of 1937 and the Polish Constitution of 1997 include specific protective provisions for (i) family life,¹⁶ (ii) marriage,¹⁷ (iii) parental rights to raise their children free from state interference,¹⁸ and (iv) children’s rights.¹⁹ These provisions are broader than those relating to the family and children in the constitutions of many other European states, including France and Germany.

The 1937 Constitution of Ireland²⁰ was adopted by a narrow margin of voters in a national plebiscite, repealing and replacing the Constitution of the Irish Free State. Overtly inspired by contemporary Catholic values, Article 41 provided state protection for the marital family unit and a total ban on the introduction of divorce. These conservative values did not recognize the reality of marital breakdown or non-marital families and delayed the development of modern family law. Modern legal regulation of marital breakdown was not introduced until the 1980s,²¹ and divorce was not available until the mid-1990s.²² The state did not support struggling unmarried families until the 1970s; instead unmarried mothers who could not support themselves or rely on family support were sent to institutional Mother and Baby Homes run by religious bodies and forcibly separated from their children.²³

The Constitution of the Republic of Poland of 1997²⁴ was enacted and approved in a referendum as the culmination of a period of economic and political transformation following the fall of communism in 1989. At the time of the Constitution’s adoption, the post-communist parties in power proclaimed liberal left-wing values, this did not extend to family life, as Polish society was overwhelmingly conservative. The 1997 Constitution thus reflects the principles of liberal democracy based on the rule of law, but addressed the demands of the influential Catholic Church²⁵ by emphasizing the right to life and protecting marriage as a union between a woman and a man.

Social parenthood is not explicitly addressed in either the Polish or Irish constitutions but in both jurisdictions, a conservative constitutional framework for safeguarding the marriage and family exerts a substantial influence on political and legal discourse, as well as on the shape of ordinary legislation. In both jurisdictions, constitutional family values have served as an obstacle to legal adaptation to social realities, which have evolved significantly since their inception. The doctrine of the constitution as a ‘living instrument’ or ‘tree of life’ is not embraced by the Polish Constitutional Tribunal²⁶ and was specifically rejected by the Irish High Court in relation to marriage equality in Zappone v Revenue Commissioners.²⁷ This constitutional conservatism contrasts with the functional and evolutionary methods of interpretation used in other countries to extend family recognition.²⁸

We examine how traditional family values became utterly embedded with Irish and Polish constitutional frameworks (Section III) before exploring how they are reconciled with modern children’s rights guarantees in constitutional jurisprudence (Section IV). Sections V and VI explore how such constitutional tensions can be navigated in legislation to achieve progressive child-focused family law reform in relation to parental status and parental responsibility.

III. Marital family dominance within constitutional understandings of ‘family’ and parents

The dominance of the marital family is a common feature of both Irish and Polish constitutional jurisprudence. The Irish constitution embeds marriage as the only basis for family recognition, although modern family legislation now embraces broader ideas. The Polish constitutional understanding of the family is potentially much broader, but has been interpreted conservatively creating obstacles to the legal recognition of social parenthood.

1. Ireland

Article 41 1° of the Irish constitution recognizes the family as ‘the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’. Article 41 2° places a duty on the state ‘to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State’. Under Article 41.3.1° ‘The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.’

Article 41 has been repeatedly interpreted by the Irish courts to limit the constitutional idea of the family to the marital family.²⁹ This understanding excludes cohabiting couples, unmarried parents, single parents, and their children. Cohabiting families are recognized only in Irish legislation,³⁰ not the constitution. This value structure ingrains a recognition of family life primarily determined by the horizontal legal relationship between adults; marriage is prioritized, not the parent/child link.

The constitutional prioritization of marriage has made it very difficult to give legislative protection to other family forms. For example, civil partnership, a legal equivalent to marriage for same-sex couples, was introduced by legislation in 2011.³¹ To exist alongside the constitutional obligation to protect marriage, civil partnership was ideologically framed as less significant than marriage, even though for many practical purposes, it was functionally the same.³² Civil partnership was also limited to people who were legally precluded from marriage and thus could not be viewed as a threat to marriage. When marriage was extended to same-sex couples by referendum in 2015, civil partnership was prospectively abolished³³ because retaining civil partnership would have created a competing and thus potentially unconstitutional family institution.³⁴ Article 41.4 as amended states that ‘Marriage may be contracted in accordance with law by two persons without distinction as to their sex.’

The removal of the special constitutional recognition given to the marital family in Article 41 has been repeatedly recommended by constitutional review groups from the late 1990s³⁵ but has proved too socially divisive. In 2024, the Supreme Court confirmed that protecting the marital family is still a valid policy goal for the state although ‘invidious discrimination’ against other family types is illegal.³⁶ A constitutional referendum to extend constitutional recognition and protection to other types of families was rejected in March 2024.³⁷

Constitutional marital family dominance means that structural divisions in how Irish law treats marital and non-marital children remain, although illegitimacy has long been abolished.³⁸ Articles 41 and 42 are the constitutional basis of married parents’ rights of custody and upbringing over their children. However, Irish constitutional courts do not recognize Article 41 or 42 as a source of parental rights over non-marital children.³⁹ Instead, constitutional rights to custody for mothers of non-marital children are found in Article 40.3,⁴⁰ while natural fathers have no constitutional right to custody.⁴¹

2. Poland

Article 18 of the Polish Constitution provides a broader constitutional basis for family recognition stating that ‘marriage, as a union of a woman and a man, the family, motherhood and parenthood, are under the protection and care of the Republic of Poland’. Article 18 is located in the first chapter of the Constitution (entitled ‘The Republic’), which lays down the main principles of the State system. The remaining provisions of the Constitution relating to the family and children’s rights are contained in the second chapter, entitled ‘Freedoms, rights and duties of persons and citizens’. The Constitutional Tribunal, sitting as a full court, stated in its judgment of 28 November 2001 (case No. K 36/01⁴²) that the Polish Constitution does not establish ‘the internal hierarchy of its provisions’.⁴³ Nevertheless, marriage is prioritized. Polish courts tend to view Article 18 as a basis for providing special protection to the abstract concept of the traditional family, often elevating it over safeguarding other family forms and the best interests of children.⁴⁴

Article 18 specifies that marriage should be protected ‘as a union of a woman and a man’ excluding same-sex couples. This wording was deliberately chosen to prevent any future redefinition of marriage.⁴⁵ The prevailing view is that extending marriage to same-sex couples would require a constitutional amendment and a referendum, similar to the process that occurred in Ireland.⁴⁶ However, the constitutional protection of traditionally understood marriage does not preclude the introduction of a registered partnership for same-sex couples.⁴⁷ Opinions differ on whether such a regulation could be similar to marriage law.⁴⁸ This is one of the reasons why Poland has not yet⁴⁹ institutionalized same-sex unions, despite a ruling by the European Court of Human Rights that mandates Poland to do so.⁵⁰ This makes it more difficult to regulate parenting in same-sex families, as the Irish experience demonstrates that the first step before doing so is the formal recognition of same-sex adult relationships.⁵¹

Other constitutional concepts are underdeveloped. The Polish Constitution does not explicitly define the meaning of family or parenthood.⁵² A broad meaning of ‘family’, beyond the marital unit, is justified by the wording of Article 71(1), which specifically distinguishes and offers special assistance to ‘single-parent families’. The potential for an inclusive approach to family protection was recognized in the judgment of the Constitutional Tribunal of 12 April 2011 (case No. SK 62/08).⁵³ The Tribunal stated: ‘In the light of the constitutional provisions, “family” should be understood as any lasting relationship between two or more persons, consisting of at least one adult and one child, based on emotional, legal and, in most cases, also on blood ties.’ Affording constitutional protection to a family understood in this way would necessitate safeguarding family diversity through ordinary legislation.

However, in the same judgment No. SK 62/08, the Tribunal indicated that the protection of the family should be read together with the protection of heterosexual marriage, motherhood, and parenthood in Article 18. This led the Tribunal to state, that ‘Protection of the family carried out by public authorities must take into account the vision of the family adopted in the Constitution as a permanent union of a man and a woman directed towards motherhood and responsible parenthood (vide: Article 18 of the Constitution).’ So, although Article 18 of the Polish Constitution does not stipulate that the family should be based on a stable relationship between a man and a woman (i.e. generally marriage), the Constitutional Tribunal has interpreted it in a manner similar to the wording of Article 41.3.1° of the Irish Constitution, adopted 60 years earlier. Moreover, the Supreme Administrative Court has recently stated that in light of Article 18, ‘There is no doubt that the legislator has given special protection to formalised heterosexual unions (marriages) and the families formed by them. (…) Polish law does not recognise the institution of same-sex parenthood’.⁵⁴ Linking the protection of the family to the goal of safeguarding traditional marriage overlooks other types of families, particularly those formed by same-sex partners. If the protection of the family is based on its procreative potential, it is difficult to find in Article 18 an obligation or even a justification for recognizing family diversity or social parenthood.

Protection of ‘parenthood’ was introduced by the 1997 Constitution to emphasize that, in addition to motherhood, (which had previously been constitutionally protected) fatherhood (paternity) should also be protected by the state.⁵⁵ The drafters of the Constitution deliberately chose not to use the term ‘fatherhood’ (or ‘paternity’) in Article 18, nor to replace the term ‘motherhood’ with ‘parenthood’,⁵⁶ but there was no serious discussion regarding what the term ‘parenthood’ could encompass beyond fatherhood. Unlike the protection of marriage, the protection of parenthood was clearly not intended to exclude any particular form of family life and does not preclude recognizing social parenthood.

However, the Constitutional Tribunal has adopted a narrow interpretation of parenthood, linking it to a biological relationship with the child.⁵⁷ In one of the leading commentaries on the Constitution, it was noted that parenthood ‘exists in two forms—as motherhood and as fatherhood’.⁵⁸ This view is not justified by the wording of Article 18, which contains the terms ‘motherhood’ and ‘parenthood’. ‘Parenthood’ is clearly broader than ‘fatherhood’ and should not be understood as having the same meaning. The Tribunal’s narrow interpretation could result from reading the 1997 Constitution through the lens of the 1964 Family and Guardianship Code,⁵⁹ which does not use the term ‘parenthood’ referring to the concepts of motherhood and fatherhood. This gloss is inappropriate, as constitutional terms should be understood autonomously.

IV. The moderation of constitutionally protected parental authority by the recognition of children’s rights

Legal recognition of social parenthood can be framed as undermining parental authority, as the state is giving legal recognition and status to adults not traditionally understood as parents. The Irish and Polish constitutions preserve a marriage-centric approach to family recognition with strong protections for parental authority, but this is moderated by more modern ideas of children’s rights and legal autonomy. This section considers the struggle in both systems to reconcile the rights of parental authority with children’s rights. We argue that appropriate consideration of the best interests principle allows social parents to be accommodated within this new constitutional context.

1. Ireland

Article 42.5 of the Irish constitution granted powerful autonomy to married parents, allowing interference by the state in only the most extreme situations where such parents had failed in their duty towards their children for physical or moral reasons. This meant that adoption and child protection, constructed as state interference with parental rights, were very differently realized for marital and non-marital children.⁶⁰ However, Irish courts had long suggested that children had equal personal constitutional rights to be reared and educated by their parents, regardless of marital status.⁶¹ Some judges suggested that these rights stemmed from Article 42,⁶² while most located the rights of non-marital children in Article 40.3.⁶³ Constitutional change was required to give effect to equal rights for all children.

Following the Children’s Rights Amendment,⁶⁴ which took effect in 2015, Article 42A.1 now recognizes and affirms the natural and imprescriptible rights of all children, regardless of the marital status of their parents. Article 42A.2 makes it clear that infringement of children’s rights by prejudice to their safety or welfare is the reason for proportionate state interference with parental rights.⁶⁵ Provision is made for the equal treatment of children in adoption law.⁶⁶ Article 42A.4 makes a legislative commitment to the best interests of the child as the paramount consideration in the resolution of legal proceedings concerning adoption, guardianship, and custody. Article 42A.4.2˚ requires that the views of any child capable of forming views shall be ascertained and given due weight in such proceedings.

Although the Children’s Rights Amendment has improved the place of children within Irish law, while Article 41 remains, the problem of differential treatment based on the marital status of their parents has not been completely resolved. The application of the best interests principle is limited to specific legislative contexts⁶⁷ and often takes effect after interference with parental rights has otherwise been justified. This ensures that the traditional understanding of parental status is preserved and is an obstacle to the straightforward legal recognition of social parenthood on a best interests basis. Best interests do not apply in legal parentage proceedings. Reformed adoption⁶⁸ and child protection⁶⁹ statutes ensure that the Article 42A.2 test is satisfied before parental rights are infringed. In private law,⁷⁰ guardianship proceedings can allow decision-making power over children to be shared with other adults, but not legally transferred. Best interests is a determining principle⁷¹ in such situations, but it is tightly reined in, and parental autonomy remains the central concept, only overridden in exceptional circumstances.

2. Poland

Polish constitutional protection of parental rights has two main dimensions. First, Article 48(1) of the Constitution guarantees the right of parents to bring up their children according to their own convictions. Under this provision, parents are primarily understood as persons who are biologically related to the child.⁷² Parental rights have an ‘inherent and natural character’⁷³ and include the right to the determination of the child’s parentage.⁷⁴ However, parental rights are also held by persons who have acquired parental status by legally recognized means, including adoption.⁷⁵ Secondly, Article 48(2) of the Constitution stipulates that ‘limitation or deprivation of parental rights may be effected only in the instances specified by statute and only on the basis of a final court judgment’.

These constitutional provisions are silent on whether attributing parental authority to a social parent, without depriving the legal parents of such authority, would constitute a limitation of parental rights in the constitutional sense. No statutory regulation or definitive authority on this issue exists in Polish jurisprudence, and there is no academic discussion on the issue. Granting parental rights to a non-legal (social) parent against the wishes of the legal parent could be framed as an infringement of parental rights, necessitating justification and court intervention because this situation compels the legal parent to collaborate with another individual in raising the child and making decisions. On the other hand, the possibility of delegating parental authority could be seen as part of the autonomy parents enjoy as part of their parental rights and may not require judicial intervention.

Article 72(1) of the Polish Constitution⁷⁶ guarantees the protection of children’s rights. Article 72(3) emphasizes that ‘organs of public authority and persons responsible for children, in the course of establishing the rights of a child, shall consider and, insofar as possible, give priority to the views of the child’. Article 72 is the basis for recognizing that the best interests of the child are a value protected by the Constitution.⁷⁷ The Polish courts of the highest instance emphasize that the obligation to protect the best interests of the child is the fundamental, overriding principle of the Polish legal system, to which all regulations concerning relations between parents and children are subordinated.⁷⁸ Public authorities must consider the principle of the best interests of the child not only in the application of the law but also in the legislative process.⁷⁹

Nevertheless, the Polish legal system struggles with reconciling the narrowly envisioned constitutional protection of the family and the broader constitutional values of safeguarding children’s rights and best interests. For example, the Polish Supreme Administrative Court refuses to register a foreign birth certificate listing the child’s same-sex parents in the national civil registry.⁸⁰ In the resolution of 2 December 2019,⁸¹ the enlarged panel composed of seven judges, the Supreme Administrative Court ruled that one of the fundamental principles of Polish legal order is that a child can have parents only of the opposite sex. The court based this principle on Article 18 of the Constitution, although its wording does not limit the family to one based on a different-sex adult relationship. The court also noted (obiter dictum), referring to the viewpoint presented in legal literature,⁸² that any recognition of adoption of the child made by same-sex persons would be inadmissible. The Polish Supreme Court confirmed this position in its decision of 24 September 2024,⁸³ ruling that a same-sex couple who married abroad cannot be treated as spouses under Polish law, so they are not eligible for stepparent adoption. The Supreme Court explicitly held that invoking the principle of the best interests of the child could not ‘open the way’ to stepparent and joint adoption by married same-sex couples, as these are reserved for spouses in the meaning of Article 18 of the Polish Constitution (i.e. of different sexes). Although both rulings are highly questionable, they exemplify the reasoning often used by Polish courts: if the best interests of the child in a particular case appear to conflict with the more abstract value of protecting the traditional family, then that value should prevail. Consequently, in Poland, these traditional interpretations are an obstacle to progressive change in family law. In many cases, the adoption by the courts of a more child-centred approach, justified by the principle of the best interests of the child, would be sufficient to protect children growing up in non-traditional families.

V. Impact of the constitution on ordinary legislation governing the determination of parentage

The constitutional provisions on the family directly influence the shape of ordinary legislation. The following sections focus on the impact of the Irish and Polish constitutions on the issue of social parenthood, assessing the restrictions of constitutional conservatism and the opportunities for modern reframing and incremental change. Section V looks in detail at legislative provisions around the determination of parentage and Section VI considers the attribution of parental rights in both jurisdictions.

1. Ireland

The concepts and mechanics of Irish family law have evolved from British law in place in Ireland at the time of independence in 1922. The Guardianship of Infants Act 1964 (GIA) was the first major piece of family legislation. As amended, it sets out the rules for attributing guardianship and custody rights to parents and non-parents and enshrines the best interests of child as the paramount consideration in any proceedings relating to the upbringing of a child.⁸⁴ In contrast, the rules ascribing legal parentage are not comprehensively codified in Irish law. Although the word ‘mother’ is used in the Constitution, the Supreme Court has ruled that it has no definitive meaning, could include gestational, genetic, or social mothers, and does not pose an obstacle to legislating for surrogacy.⁸⁵ For the purposes of birth registration, the woman who gives birth to a child is the child’s legal mother,⁸⁶ whereas the genetic father of a child is the legal father unless a more specific meaning is given in a particular statute.⁸⁷ Irish statute law does not provide for more than two legal parents under any circumstances, and the concept of multi-parenthood has not been discussed in Irish law.

The Status of Children Act 1987 sets out two legal presumptions of fatherhood: the husband of a women who gives birth is presumed to be the father of the child,⁸⁸ and the man named on the child’s birth certificate is presumed to be the father of the child.⁸⁹ These presumptions can be rebutted by application to the court on the balance of probabilities. It should be noted that it is an offence under the Civil Registration Acts to register false birth information.⁹⁰ The Status of Children Act 1987 sets out the procedural rules for a court declaration of parentage⁹¹ and the use of DNA tests.⁹² In contrast to Polish Law, any person can apply to the court for a declaration that they are or are not the legal parent of a child, and any person can apply to the court for a declaration that named persons are or are not their legal parents.⁹³

Irish Law creates highly legislated exceptions to these default rules of legal parentage. Domestic adoption in Ireland is open to married or cohabiting same-sex and different-sex couples.⁹⁴ Adoptions by individuals are only permitted in particular circumstances such as step-parent adoption, relative adoption, or long-term foster care adoptions. The same eligibility requirements apply to intercountry adoptions.⁹⁵ Overall numbers of adoptions in Ireland are very low.⁹⁶

Part 2 of the Children and Family Relationships Act 2015 allows children conceived through Donor Assisted Human Reproduction (DAHR) to have genetically unrelated parents by operation of law; either a mother, a mother and a father, or two mothers. These rules of legal parentage follow a highly regulated form of assisted reproduction called ‘Donor Assisted Human Reproduction’. DAHR must take place at a registered facility in Ireland using donor gametes or embryos.⁹⁷ Such donors must give specific consent, acknowledging that they shall not be the parent of any child born,⁹⁸ and provide identifying information⁹⁹ recorded on the National Donor-Conceived Person Register.¹⁰⁰ The woman who gives birth to a child as the result of a DAHR procedure is the legal mother.¹⁰¹ The spouse, civil partner, or cohabitant of the mother is recognized as the child’s second legal parent as long as both the mother and the second legal parent have given the required legal consents, declarations, and identifying information.¹⁰² Part 2 of Children and Family Relationships Act 2015 thus allows adults with no biological link to the child to be recognized as a second legal parent in specific circumstances by operation of law.

More child-focused transitional measures¹⁰³ allow the court to make a declaration of parentage for children born in Ireland following assisted reproductive technologies (ARTs) procedures carried out before 4 May 2020. The Irish birth register can be changed to include a second intending parent who does not need to have a genetic connection to the child but undertook to care for the child as if he or she were the child’s parent.¹⁰⁴ Eligible children must have been conceived using a gamete from an ‘unknown’ donor who was not an intending parent of the child. In making such a declaration, the court must consider whether it is in the best interests of the child to make such a declaration and give the child the opportunity to make their views on the matter known to the extent possible, given their age and understanding.¹⁰⁵

Once commenced, the Health (Assisted Human Reproduction) Act 2024¹⁰⁶ will allow the court to make a parental order¹⁰⁷ to recognize intended parents who create a child through surrogacy. Such children may have two mothers, two fathers, a father and a mother, a mother or a father, but this is a highly regulated exception. Parental orders may be granted only where the court is satisfied that there is a pre-approved ‘permitted surrogacy’ or ‘permitted international surrogacy’ agreement.¹⁰⁸ Such agreements cannot be commercial in nature,¹⁰⁹ and there are statutory eligibility requirements for surrogates¹¹⁰ and intending parents.¹¹¹ Consent must be given by the surrogate and the intending parents,¹¹² and independent legal advice must be received.¹¹³ In order to apply for a parental order, a genetic link must exist between the child and one of the intending parents,¹¹⁴ and no genetic link can exist between the child and the surrogate mother. The intending parents and the surrogate mother must consent to the making of the order, and the child must live with the intending parents at the time of the application. Consent may be waived in exceptional circumstances.¹¹⁵ The order must be in the best interests of the child,¹¹⁶ and the court must ascertain the views of any child who is capable of forming his or her own views.¹¹⁷

The best interests of children born are not the primary principle in the new Irish alternative routes to legal parenthood; instead, full legal parentage is the incentive for adult compliance with highly prescriptive state processes. In relation to DAHR, consideration of best interests only appears in the transitional measures. In the new surrogacy legislation, the court will grant a parental order only if satisfied that it is in the best interests of the child,¹¹⁸ but the eligibility and pre-approval requirements mean that many (if not most) surrogacy situations will fall entirely outside the Act. The best interests of the child are the paramount consideration for decision-making in adoption proceedings¹¹⁹ once parental rights have been abandoned or overridden.

2. Poland

Family law in Poland is codified in the Family and Guardianship Code of 25 February 1964 (FGC). As part of the Eastern European framework of socialist family law, the FGC was a modern codification for its time.¹²⁰ It provided for the equal rights of husband and wife,¹²¹ the equal status of children born within and outside of marriage,¹²² and divorce based on the irretrievable breakdown of marriage, though it is fault-based. The Code has been amended several times, but the changes relating to parenthood, parental authority, and adoption have been evolutionary rather than fundamental. The current shape of the FGC has been rightly described in the literature as ‘deeply influenced by the traditionalism of Polish society and the dominance of Catholicism’.¹²³

Polish statutory law reflects an orthodoxy of biologically related parents. A child can have no more than two parents, who must be of opposite sexes (a mother and a father). The Supreme Administrative Court¹²⁴ roots this basis in Article 18 of the 1997 Polish Constitution although this understanding is shaped by the 1964 FGC. This interpretation is unjustified and should not constitute an obstacle to changes in ordinary legislation, as Article 18 directly links gender differences to the protection of marriage, not parenthood. A mother is always a woman who gave birth to the child (Article 61⁹ FGC). Neither surrogate nor same-sex motherhood is recognized by Polish statutory law, although these social phenomena take place in Poland. The Supreme Administrative Court in the judgment of 28 February 2024¹²⁵ stated that “A child cannot have more than one mother, and the mother can only be a woman”. Paternity is established based on the man’s relationship with the child’s mother through the marital presumption, the acknowledgment (recognition) of paternity before the head of the civil registry office (with the mother’s confirmation), or its determination through court proceedings.¹²⁶ Under Polish law, ARTs are only available to different-sex couples.¹²⁷ Single women and women in same-sex relationships do not have access to insemination, in vitro fertilization, or embryo donation in Polish clinics.¹²⁸

The Polish legal system, like most continental European jurisdictions, does not permit granting parental status to a social parent on the basis of the best interests of the child. Polish law allows deviation from biological parentage, but only in situations that guarantee the child born will legally have both a mother and a father.¹²⁹ The narrowness of the exception has been unfairly justified by the need to protect the best interests and rights of the child.¹³⁰ Step-parent and joint adoption are only available to married opposite-sex couples, even if, in particular situations, same-sex adoption would be in the best interests of the child.¹³¹ The concept of a child having more than two legal parents (multi-parenthood) has not yet been discussed in Poland.¹³²

The 1997 Constitution has been used to justify greater emphasis on genetic truth in the determination of parenthood, displacing family stability as the primary concern. In the explanatory memorandum of the 2008 Act reforming filiation and child law,¹³³ aimed at adapting the FGC to the provisions of the 1997 Constitution, it was highlighted that ‘Nowadays it is possible to establish with certainty, on the basis of a genetic testing, the descent of a child from its parents. (…) For this reason alone, the principle should now be to base the legal parental relationship (maternity, paternity) on a genuine biological relationship between the child and the mother and father.’¹³⁴

A landmark judgment on the determination of parentage was issued by the Constitutional Tribunal on 28 April 2003 (case No. K 18/02). The Tribunal held that the lack of the right of the genetic father to initiate legal proceedings to establish the paternity of the child was, inter alia, contrary to Article 72(1) of the Constitution, which guarantees the protection of the rights of the child. This judgment initiated a line of jurisprudence in which the Tribunal declared as unconstitutional provisions that created unjustified obstacles to establishing or denying paternity according to biological origin. These included provisions prohibiting recognition (case No. SK 61/06¹³⁵) and denial of paternity (cases No. P 33/12¹³⁶) after the death of the child, and a regulation that did not allow a child to bring an action for denial of paternity after reaching the age of 21 years (case No. SK 18/17¹³⁷). In the last of these judgments (case No. SK 18/17), the Tribunal, summarizing its jurisprudence, stated that from the right to protection of family life (Article 47 of the Constitution) follows the right of parents to protect their parenthood, which is directly connected to the principle of protection of parenthood (Article 18 of the Constitution) and correlates with the child’s right to establish their biological origins (stemming from Article 72). The Tribunal has thus associated the protection of family life and parenthood with biological parenthood, linking it to the right to know one’s identity. This case law and amendments to the FGC (including the 2008 Act reforming filiation and child law) have made it easier to rebut paternity established by marital presumption and acknowledgement.

The Constitutional Tribunal in case Nos K 18/02 and SK 18/17 highlighted that ‘the principle of the best interests of the child can be implemented to the fullest extent possible (…) through parental care exercised by those who have a biological bond with the child’. However, the primacy of ties based on biological connection ‘expresses only the dominant tendency, which does not exclude that, under certain conditions and circumstances, the best interests of the child do not require recourse to other considerations for the formation of family relationships, in which the interests of the child take precedence over those of the biological parents and require the protection of family relationships based on the existence of a bond other than the biological bond (adoption, foster care, but also stable family relationships established contrary to the biological truth, which can no longer be legally challenged)’. Nevertheless, the position that constitutional protection of children’s rights (Article 72) may, in exceptional cases, justify departing from biological links does not have broader application in the current provisions for determining parentage. Its impact can only be seen in the rules on the denial of established parentage.

In its judgment of 15 January 2021 (case No. IV CSKP 28/21), the Supreme Court recognized that the legislator prioritizes children’s best interests and protection of the family over the principle of biological truth by implementing restrictions on actions seeking to deny maternity or paternity. The most important of these is the statutory time limit for filing an application for judicial denial of parentage, which in most cases is 1 year from the time the applicant becomes aware that parentage has been wrongly established. The case law of the Supreme Court, which began in the 1960s¹³⁸ and was recently reaffirmed in light of Article 72 of the 1997 Constitution,¹³⁹ holds that, in exceptional cases, a request for the denial of maternity or paternity—while justified on the grounds of lack of biological (genetic) connection with the child—may be rejected by the court if it is deemed contrary to the best interests of the child. In its resolution of 27 February 2020 (Case No. III CZP 56/19) and judgment of 10 August 2022 (Case No. II CSKP 513/22), the Supreme Court emphasized that, when making this assessment, it is particularly important to examine the quality of the bond between the child and the man who is the child’s legal but not genetic parent. The court should also consider the significance of biological truth for the child’s proper development. A claim for the denial of paternity by a non-biological father is more likely to be rejected when the biological father cannot be identified, particularly in cases involving artificial insemination using anonymous sperm donation.

So although Polish jurisprudence admits exceptions to biological parenthood on the basis of the bond between parent and child, this impact of the best interests of the child principle on understanding parenthood in Poland is currently too limited to protect family diversity.

VI. Impact of the Constitution on ordinary legislation governing the allocation of parental responsibilities and rights

1. Ireland

In Irish law, parental rights and duties can be separated from legal parental status. The terms ‘guardianship’ and ‘custody’ are used across Irish legislation and within Article 42A of the Constitution, although criticized by the Law Reform Commission¹⁴⁰ as emphasizing parental authority rather than parental responsibility. Guardianship gives an adult, rights, responsibilities, and decision-making powers in respect of children. Custody refers to an adult’s right to exercise physical day-to-day care and control over a child who lives with them.¹⁴¹ Guardianship includes a right of custody over a child as against non-guardians and entitles a guardian to take proceedings for the return of a child to their custody.¹⁴²

Not all legal parents have automatic rights to guardianship from a child’s birth. Legal mothers have automatic rights of guardianship in all circumstances.¹⁴³ In contrast, the statutory and constitutional rights of fathers to guardianship depend on their relationship to the child’s mother, and marital status remains very significant. Legal fathers who are married to the child’s mother at the time of birth have automatic guardianship rights.¹⁴⁴ If the father is not married to the child’s mother at the time of birth, he may acquire guardianship rights by cohabiting with the mother¹⁴⁵ for 12 months, including at least 3 months after the birth of the child, making a joint statutory declaration with the mother,¹⁴⁶ or by successful application to court, where the court will consider whether awarding guardianship is in the best interests of the child.¹⁴⁷

The Children and Family Act 2015 amended the GIA to apply the same rules where children are born following DAHR.¹⁴⁸ In such cases, the father or second female parent will not have automatic guardianship rights unless they are married to the child’s mother. They must acquire such rights by cohabitation, statutory declaration, or successful application to court. Where a couple jointly adopt, both parents will be joint guardians of their adoptive child, regardless of their marital status.¹⁴⁹ Once the H(AHR) Act 2024 is commenced, a parental order will also give the intending parents joint guardianship, regardless of their marital status.¹⁵⁰

Irish law inherited the concept of a non-parent guardian from the 19th-century British doctrine of paternal supremacy. Under this doctrine, a married father was the sole legal guardian of his children; the mother merely had the right to petition for custody and access in certain circumstances.¹⁵¹ The married father could appoint a guardian by deed or will to act for him after his death, ensuring that his wishes were fulfilled.¹⁵² British statute provided that a married mother became the guardian of her children after the father’s death but acted jointly with his designated testamentary guardian.¹⁵³ The doctrine of paternal supremacy was declared unconstitutional in R v Tilson,¹⁵⁴ where the Supreme Court held that Article 42 required married mothers and fathers to have equal decision-making authority over their children.

The modern origins of the non-parent guardian are thus based on equal rights of adult autonomy rather than child-centric concerns. Section 7 of the Guardianship of Infants Act 1964 equalized rights of testamentary guardianship by allowing married mothers to nominate a testamentary guardian to act alongside a surviving father and vice versa. Section 8 created powers for the court to appoint guardians for a child who had no guardian or to act alongside a surviving parent where no testamentary guardian had been named by the deceased parent. The powers of non-parent guardians were outlined by statute¹⁵⁵ but could be further limited by the court. Some parliamentarians considered the extension of testamentary guardianship to be an unconstitutional intrusion on the rights of parents,¹⁵⁶ but the legislation was justified because court appointment of a guardian to act alongside an existing parent was not new and had been accepted by the Supreme Court in Re Tilson.¹⁵⁷ Moreover, the legislation left surviving parents in a stronger legal position than the testamentary guardian and the court would favour surviving parents in any dispute about appointment.¹⁵⁸

The Children and Family Relationships Act 2015 has greatly extended the role of the non-parent guardian, allowing them to be appointed alongside two living parents. In 2009, the Law Reform Commission suggested that limiting guardianship to the child’s parents while they were alive unduly impacted children who lived with their grandparents or relatives.¹⁵⁹ Extending guardianship to non-parents was not generally viewed as eroding parental rights within the debates leading to the adoption of the 2015 Act. Instead, parliamentarians acknowledged the everyday impracticality of grandparent and step-parent carers being unable to consent to medical treatment.¹⁶⁰ The language of children’s rights and the need for a child-centred approach was very strong in these debates, which took place just before the Children’s Rights Amendment came into effect. Moreover, the Government were keen that the impending Equal Marriage referendum campaign would not be plagued by issues relating to same-sex adoption or surrogacy.

The Guardianship of Infants Act, as amended, now allows the court to grant guardianship to non-parents in three different situations:

1. step-parents (by civil partnership or marriage or cohabitants of 3 years’ standing) who have shared day-to-day care for more than 2 years;

2. people who have acted as the child’s main day-to-day carer for 12 months AND no parent or guardian is willing or able to exercise guardianship¹⁶¹;

3. temporary guardians nominated by an existing guardian in the event of incapacitating injury or illness.¹⁶² The court may only appoint the temporary guardian where it is satisfied that the nominating guarding is incapable, that the nominated person is ‘fit and proper’, and it is in the best interests of the child for the temporary guardian to be appointed. So although the class of people who can be nominated is completely open, they must be vetted by the court to assume their powers.

The legitimacy of non-parent guardianship is rooted in parental autonomy, but its extension shows how the state’s commitment to the best interests of children can be a significant driver of progressive social change. The consent of existing guardians is required to appoint a non-parent guardian, and parents without guardianship are put on notice. Consent can only be dispensed where it is unreasonably withheld, and it is in the best interests of the child to do so. Before making such an appointment, the court must expressly consider the views of the child and have regard to the number of persons who are guardians and their involvement in the upbringing of the child. The public/private law nature of appointing a non-parent guardian to act in lieu of an absentee parent is acknowledged by the requirement to notify Tusla (the Irish child protection agency), which may give a view on whether this is an appropriate alternative to public child protection proceedings.¹⁶³ The guardianship rights of parents and other pre-existing guardians are not affected by the appointment of a new guardian. As a deliberate policy choice, the powers of non-parent guardian are limited by statute and, the court must expressly consider which powers to grant.¹⁶⁴

Overall, the Guardianship of Infants Act 1964 creates a hierarchy of guardianship classes:

1. Parents with automatic guardianship rights, which may not be removed except through adoption. These guardianship rights are undefined by statute.

2. Fathers and second female parents who do not get guardianship rights automatically. Where granted, the guardianship powers of these parents are the same as automatic parent guardians but can be removed by court order under section 8(6).

3. Testamentary guardians get guardianship rights on application to court when the nominating parent dies. They are generally granted full guardianship powers and can apply to act as a guardian to the exclusion of other existing guardians.

4. Non-parent guardians under sections 6C and 6E, who are granted limited guardianship rights by the court, which must consider whether or not all such powers should be granted.

The extension of non-parent guardianship in Irish law is pragmatic and acknowledges the reality of social parenting. LGBT parents who do not satisfy the requirements for legal parenthood may apply for non-parent guardianship, generally as the child’s step-parent. However, as a substitute for full legal parenthood, legal guardianship falls short, ceasing when a child turns 18 years and having no effect on nationality or succession rights.

2. Poland

In Poland, the bundle of parental rights and duties, which includes decision-making powers and representation of the child, is called parental authority (power) (in Polish: ‘władza rodzicielska’).¹⁶⁵ Although the 1997 Constitution provided for the protection of children’s rights, ordinary legislation uses the term ‘parental authority’ rather than more child-centered terminologies employed in other systems, such as ‘parental responsibility’, ‘parental care (custody)’, or ‘parental responsibilities and rights’. In the explanatory memorandum to the 2008 Act reforming filiation and child law, it was argued, inter alia, that the term ‘parental authority’ is ‘adequate to the role of parents in the sphere of child-rearing in relation to other persons. Article 48 of the Constitution ensures that parents have primacy in the upbringing of their child’.¹⁶⁶ As a result, the 1997 Constitution has once again been used to justify the existing legal framework established before its enactment, instead of encouraging the adoption of a more child-centered approach in family law.

Under Polish law, only legal and adoptive parents can have and exercise parental authority. In legal doctrine, it is argued that parental authority over a child is a dependent relationship, which arises from a basic source relationship of kinship or adoption.¹⁶⁷ The inseparable link between biological parenthood and parental authority significantly distinguishes countries like Poland from jurisdictions such as Ireland or Britain, where the issues of who is the parent and who is the holder of parental rights might be separated. There is no basis in Polish statutory law to attribute the non-legal (social) parent with parental authority, even if this would be in the best interests of the child. Polish law is so consistent in linking parental authority to parental status that even where a legal guardian is appointed, it does not explicitly provide that the guardian has parental authority, but that the provisions on the exercise of parental authority apply accordingly to the exercise of guardianship (Article 155 FGC). Guardianship (legal protection) applies only to the situation, where a child legally has no parent with parental authority (Article 94 § 3 FGC). An exception exists in the new and special institution of ‘temporary guardianship’, which was introduced by the Act of 12 March 2022 on assistance to Ukrainian citizens in connection with the armed conflict in the territory of Ukraine.¹⁶⁸ It is now possible for the court to appoint a temporary guardian, but only for a Ukrainian child staying in Poland without the care of the child’s parents, who retain parental authority while living abroad. It should be considered whether this institution could be developed as a means of recognizing social parenthood, but there is no discussion of this issue in Polish legal literature.

Social parenthood has received limited recognition in maintenance and contact law. Polish law is one of the few jurisdictions to provide for mutual maintenance obligation between the child and the spouse of the child’s parent.¹⁶⁹ Provisions on contact between parents and children apply similarly to contact of a child with siblings, grandparents, relatives by affinity (this includes spouses of parents), and other people, if these other people have cared for the child over a longer time.¹⁷⁰ People close to the child can ask the court to establish contact with the child, and the court will assess whether this is in the child’s best interests. Establishing contact does not confer any rights regarding the upbringing of the child, which makes this remedy highly inadequate to protect social parenthood.¹⁷¹

VII. Conclusions

The emergence of children’s rights demands a functional approach to the legal recognition of social parenthood, ensuring that all children in need of legal protection are covered. The constitutionalization of children’s rights in Poland in 1997 and in Ireland in 2012 requires a child-centred interpretation of the Constitution, as well as the introduction of flexibility in ordinary legislation concerning the determination of parentage and the attribution of parental responsibilities and rights. We argue that to effectively protect children’s rights, the law must prioritize the best interests of the child in a functioning family where circumstances so require, even at the cost of infringing the traditional rights or status of the birth parents.

The constitutional conservatism observed in Ireland and Poland has the effect of regulating some family relationships and ignoring others, as well as establishing hierarchies, with the family based on marriage at the top. It should follow from the constitutional protection of children’s rights that children, who do not choose their family forms, should not face negative consequences due to their caregivers’ choices, but traditional legal structures get in the way. In Poland, the inclusion in Article 18 of the Polish Constitution of the protection of marriage ‘as the union of a woman and a man’, intended to prevent the extension of marriage to same-sex couples, is unjustifiably extrapolated to the understanding of parenthood and interpreted as a barrier to protecting rights of children who do not fit into the different-sex model of parenthood. This is a serious limitation to the doctrine of children’s best interests and the recognition of social parenthood. This could be avoided if Article 18 were interpreted according to its wording, as safeguarding four values, that is marriage (as a union between a woman and a man), family, motherhood, and parenthood, which have different meanings but deserve equal protection. Legal recognition should extend beyond traditional marital and parental status to encompass more diverse family forms and relations, including social parenthood, as demonstrated by gradual developments in Ireland over the past decade.

Some contemporary forms of family and parenthood, such as those resulting from medically assisted procreation, surrogacy, and same-sex parenthood, were not present or widely visible during the drafting of the Irish and Polish Constitutions. This should not be a reason to refuse their recognition if it is in the best interests of the child. Nevertheless, both Irish and Polish experiences demonstrate such family relationships are often treated not only as undeserving of protection but also as contrary to the constitutional ideal of the family. In Ireland, one approach to addressing this issue has been through constitutional amendments. However, in most cases, a functional change in the interpretation of the Constitution would suffice. In Poland, although the 1997 Constitution has more general and liberal language regarding family provisions, yet these provisions are sometimes interpreted more conservatively than the amended 1937 Irish Constitution. The case law of the Polish courts of the highest instance shows that the principle of the best interests of the child is not prioritized over other constitutionally protected values but instead gives way to the vision of the family as based on a relationship between two persons of different sexes.

Properly understood, the Polish Constitution, which expressly protects family and parenthood (Article 18), as well as family life (Article 47), should not constitute an obstacle to introducing ordinary law to award parentage for a broader class of people who are not biologically related to the child. This already occurs in different-sex couple families who use assisted reproduction technologies. Thus, it should be possible to judicially establish the parentage of a social parent, particularly one who is already caring for the child, if the court determines that this is in the child’s best interests. The case law of the Constitutional Tribunal, which highlights that the protection of parental rights (Article 48) and children’s rights (Article 72) implies the right to determine a child’s parentage based on biological connections, should be viewed as reflecting the typical approach, but not as a barrier to recognizing social parenthood on the best interests basis. This is particularly relevant when genetic paternity cannot be determined due to the use of medically assisted reproduction or the disinterest of the biological father. The Irish framework demonstrates that recognizing same-sex parenthood is possible within a context of constitutional conservatism. However, Irish experiences also show that the first step in addressing these issues is the formal recognition of same-sex adult relationships, which Poland has not yet implemented, despite being obligated to do so under Article 8 of the ECHR.

Social parents could also be awarded parental responsibilities as is an increasingly common model within Europe. Creating parental hierarchies within legal mechanisms for the recognition of social parenthood, as Irish law has done, could be a politically safe way of bringing diversity into Polish family law, while simultaneously emphasizing the priority of the rights of legal (biological) parents. As such, Irish regulations on non-parent guardianship serve as a valuable model for Poland and other constitutionally conservative jurisdictions to start recognizing social parenthood. The important advantage of the Irish model, especially in comparison to regulations on delegation of parental authority applicable in France and the Netherlands,¹⁷² is that a social parent can exceptionally be given parental-like rights and responsibilities without the consent of one or even both legal parents. In this way, the protection of children’s rights is not entirely subordinated to the protection of parental rights. However, the Irish model also has disadvantages, the most significant of these are the lengthy time-related requirements, particularly those applicable to cohabitants (3 years of relationship), which may result in the child not receiving necessary protection due to technical ineligibility.

This leads to the critical question of whether giving functional legal equivalence to social parents rather than equal legal status is sufficient to achieve equality for children. A functional approach, which involves determining parentage or parental responsibilities and rights for a social parent through a case-by-case assessment based on the best interests of the child, should be considered a minimum requirement under the constitutional clauses protecting children’s rights. This functional protection might not be enough compared to the automatic recognition offered to families based on marriage if the judicial process is inaccessible or protracted or difficult. Justifying this distinction by the constitutional protection of marital family, which requires the ordinary legislator to give incentives to opt into marriage is unduly adult behaviour focused. Truly child-centred family law should be more about direct recognition of vertical connections between parents and children from a child-focused perspective rather than the types of horizontal legal links between children’s parents. In Ireland and Poland, this more child-centred focused family law seems difficult to achieve while the current marriage-centric constitutional interpretations remain in place.

Footnotes

Funding

This article is the result of an academic collaboration made possible by a Sutherland Fellowship awarded to Jakub Pawliczak by the UCD Sutherland School of Law, University College Dublin, and funding granted by the University of Warsaw (project No. BOB-661-1204/2003).

Institutional Ethical approval

This article is based on a doctrinal analysis of openly available legal sources, it does not raise any ethical issues and as such does not require ethical approval.