State fights ruling on ‘genetic’ surrogacy

A surrogate who gave birth to twins using genetic material of a couple must, as a matter of law, remain registered as the mother of those children on their birth certificates or there will be “massive” and “radical” consequences, the State has argued before the Supreme Court.

The State’s position is that a woman who gives birth to a child is the mother of that child; that motherhood as a matter of fact and common sense involves pregnancy; and it cannot in law be based on genetics, said counsel Michael McDowell.

It would be a matter of “grave public concern” with consequences for citizenship, succession, and the criminal law if the Supreme Court does not overturn the High Court decision that the woman who donated the genetic material to the surrogate must be registered as the mother, he argued.

The High Court had no jurisdiction to reverse the meaning of motherhood and was “radically wrong” in finding motherhood was based on genetics. If the genetic parents succeed, it would “put in complete doubt” the position of many women who now think they are mothers after giving birth to children using eggs donated by other women.

Laws being introduced by the Oireachtas will address the position of the couple but it is up to the State, not the courts, to legislate for the issues surrounding assisted reproduction and surrogacy, he said. Any change to the existing law must be effected by a positive law enacted by the Oireachtas with regard to the constitutional rights of all affected.

While scientific possibilities had changed, the law had not moved with them and any change now should be left to the Oireachtas. As of now, the State’s position was a child “cannot have two mothers at the same time”, counsel submitted.

Mr McDowell was opening the State’s appeal to a seven-judge Supreme Court against a High Court decision last May that the genetic parents are entitled to be registered as the twins parents on their birth certificates. The twins were born to a surrogate, a sister of the genetic mother, some years ago.

The Equality Authority and Irish Human Rights Commission will be making submissions in the appeal.

When Mr Justice John Murray said it seemed unfair the couple had no parental entitlements, counsel said they could have pursued adoption of the twins, which allows for transference of motherhood, but had decided not to do so.


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