Birth cert issues in surrogacy court case

Issues have been raised in an action taken by two children who wish to have their genetic mother’s name on their birth certificates that have never before been considered by the Irish courts, despite advances made in IVF technology, the High Court has heard.

The comments were made by Senior Counsel Gerard Durcan, on behalf of the children in his opening of the landmark case in the High Court. Counsel told Mr Justice Henry Abbott the legal issues raised would not be easy to resolve.

The children are seeking declarations, under the Status of Children Act, that their genetic mother is their mother, that she is entitled to be registered as so, and that the register of births be corrected to reflect their true parentage.

The children want the court to order An t-Árd Chláraitheoir to correct the register of births to reflect this.

They are also seeking a declaration that the failure to recognise the father and genetic mother of the children is unlawful, and fails to vindicate their Constitutional rights.

In the alternative they seek a declaration that the father and genetic mother are the children’s guardians.

The surrogate mother is supporting the couple’s application, which was refused by the office of An t-Árd Chláraitheoir in 2011, on the grounds that there is no legal basis to change the name of the mother on the birth certificate from the surrogate mother to the genetic mother.

The Attorney General and the Office of the An t-Árd Chláraitheoir are opposing the action, on grounds including that the surrogate or gestational mother is in law the mother of the child.

More details of the case emerged yesterday following the release to designated media of redacted transcripts of the opening days of the hearing, before Mr Justice Henry Abbott.

Opening the case, Mr Durcan, SC said the children were born to a surrogate mother because the genetic mother was unable to give birth in the normal way. The children were born by arrangement.

The ova produced by the genetic mother was fertilised by sperm from the father and then implanted in the surrogate mother, who then gave birth.

It had always been agreed that the children would be brought up by the father and the genetic mother, counsel added.

There has never been a dispute between these individuals as to how the children should be treated by law, counsel said.

However the difficulty arises because the State contends as a matter of law the surrogate mother is the person who must be treated as the mother of the children.

Counsel said that action is being opposed by the State parties who he said contend the surrogate mother is in law irrefutably the children’s mother. The State was applying the principle mater certa semper est — motherhood is always certain.

Earlier this week Mr Justice Abbott — following an application by three newspapers — allowed restricted reporting of the case by designated media only.

The case continues.