The genetic mother of twins born to a surrogate has lost her legal battle to be declared the children’s legal mother on their birth certificate.
In a landmark Supreme Court judgment the State yesterday won by a 6:1 majority its appeal against a High Court ruling that the genetic mother of twins born to a surrogate is entitled to be registered as their legal mother on their birth certificate.
Ms Justice Susan Denham, the Chief Justice, said the issues in the case arose from radical developments in assisted human reproduction and were “quintessentially” for the legislature, not the courts, to address.
There was “clearly merit” in the legislature doing so as there was a legal “lacuna” about certain rights, especially those of children born via such arrangements. “Any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content,” she said.
In separate judgments, Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Donal O’Donnell, Mr Justice William McKechnie, and Mr Justice John MacMenamin agreed the appeal should be allowed while Mr Justice Frank Clarke dissented.
The case centred on twins born, using genetic material from their parents, to a surrogate — a sister of the genetic mother, who cannot carry children due to a disability.
The registrar of births registered the genetic father as the twins’ father on their birth certificates but refused to register the genetic mother because she was not the birth mother and said the surrogate must be registered as the legal mother. The genetic parents successfully challenged that in the High Court which ruled motherhood is based on genetic links.
The State appealed, arguing the High Court decision had “massive” implications, including for mothers who bore children using donated eggs, and citizenship and succession rights.
The Chief Justice said the core issue was the registration of a “mother” under the Civil Registration Act 2004. There was “no definitive definition” of “mother” in the Constitution and nothing in the Constitution to prevent development of appropriate laws on surrogacy.
Mr Justice O’Donnell stressed his decision allowing the appeal was based on a narrow finding the 2004 act requires the birth mother to be registered as mother on the twins’ birth certificates.
It was “completely wrong” that a system which has not regulated assisted reproduction but permits children to be born via assisted reproduction fails to provide any system acknowledging the existence of a genetic mother not just for birth registration but for many other details of personal and family life recognised by the Constitution as “vital to the human person”, he said.
Dissenting, Mr Justice Clarke said the genetic mother and birth mother both have some of the characteristics of mothers as that term is used in Irish law. He did not believe scientific advances meant a loss of status as “mother” for either a birth or genetic mother.
Pending the necessary legislation, he considered the “least bad solution” required a birth mother and genetic mother to be both registered in some way and the registrar of births should put measures in place for that.
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