Lawyer: Family vindicated by ruling but laws must change
Mr Justice Henry Abbott ruled in the landmark action that the genetic mother in the case is the mother of the twins.
He further ruled that the genetic mother and the children were entitled to have this fact recorded on the birth certs.
The genetic mother of the twins — who were born to her sister using her embryos — had challenged the refusal of the chief registrar to record her name on the birth certs.
In a statement issued through their solicitor Marion Campbell after the ruling, the family, who cannot be named, said they were “delighted with the outcome”.
“My clients’ rights and their children’s rights have been vindicated. It has been a long hard and emotional time for them,” said Ms Campbell.
It was their hope that much-needed legislation dealing with the issue of surrogacy would be introduced. This would ensure children born by surrogacy would have their rights enshrined in law, she said.
The children and their genetic parents had sought declarations under the Status of Children Act that their genetic mother was their mother and was entitled to be registered as such, with the register of births to be corrected to reflect their true par-entage.
The Attorney General and the office of the registrar general had opposed on grounds including the surrogate or gestational mother was, in law, the mother of the child.
The genetic parents’ application to be registered as the twins’ parents in the birth certs was refused by the office in 2011.
It was turned down on grounds that there was no basis in law to change the name of the mother on the birth cert from the surrogate mother to the genetic mother and that the principle of “mater certa semper est” — motherhood is always certain — was applied.
In his ruling Mr Justice Abbott said to achieve fairness and constitutional and natural justice for both the paternal and maternal genetic parents, the inquiry in relation to maternity ought to be made on a genetic basis and on being proven the genetic mother should be registered as the mother, he said.
While the input of a gestational mother to an embryo and foetus was to be respected and treated with care, the judge found the determination of individual maternity through a DNA testing must be compared with the law and the standards for the determination of that person paternity. It would be invidious, irrational, and unfair to do otherwise, he said.
The judge said “the fundamental issue in the case” was who in law was entitled to be treated as the children’s parents and in the case of a surrogacy whether the principle of “mater certa semper est”, could be challenged within the current legal and constitutional framework in Ireland.
He rejected submissions by the State that the 1983 pro-life amendment to the Constitution meant that the woman who carried the child in pregnancy was the legal mother.
Mr Justice Abbott also noted that legislation on surrogacy was absent and so the surrogacy contract entered into by the genetic parents and the surrogate mother prior to their births was not illegal. However, the contract would not be enforceable by the Irish courts.
The judge adjourned the matter to a date next month in order to allow all parties consider of the court’s judgment.
Irish law currently has no provision for surrogacy, despite repeated warnings from legal experts that surrogate children could be left abandoned, parentless, and stateless.
Guidelines issued by the Department of Justice early last year highlight the legal quagmire:
*Q: What are the genetic relationships involved in child surrogacy?
A: A child born as a result of surrogacy may have a genetic relationship with any of the following: The surrogate mother, the commissioning mother or egg donor, the commissioning father or sperm donor.
Just because a genetic relationship exists between a commissioning adult and the child does not mean he or she is automatically the legal parent of the child.
*Q: Who is the legal mother of the child?
A: Under Irish law, the woman who gives birth to the child — in this case the surrogate mother — is the legal mother, even if the ovum from which the child was produced was provided by one of the commissioning adults, or by a donor.
Under Irish law, family relationships and responsibilities cannot be subjected to the ordinary law of contract and cannot be transferred to another person, bought, or sold.
This means that, under Irish law, the surrogate mother and child will have a lifelong legal relationship with one another.
*Q: Who is the legal father?
A: There are different circumstances depending on marital status.
If the surrogate mother is married, under Irish law, her husband is the presumed father of the child. The husband will also, along with the surrogate mother, be joint guardian of the child.
However, if the commissioning father is the genetic father, it is possible to overcome the presumption of paternity in favour of the surrogate mother’s husband, so as to allow the commissioning father to be recognised as the legal parent. A guardianship order can also be sought by the commissioning father.
The commissioning father will need to prove evidence of paternity through DNA evidence from an independent, reliable source. DNA evidence from a home kit or from any body linked to a surrogacy agency will not be permitted.
If the surrogate mother is not married and the commissioning father is the genetic father of the child, then Irish authorities may recognise his paternity of the child on receipt of reliable DNA evidence. However, this does not mean he is automatically the guardian of the child.
*Q: What is the situation regarding the granting of citizenship and passports?
A: Only a parent or a guardian can apply for a passport on behalf of a child, and a passport will generally only be issued where guardianship has been established.
However, authorities may be able to issue an emergency travel certificate to enable the child to enter the State.
This requires that all parties — the surrogate mother and her husband (if married) and the commissioning couple hoping to bring the child into the State — provide a written undertaking that they will notify their local health centre of the child’s presence within two working days of their arrival in the State.
The genetic father must provide an undertaking that he will apply to the courts for a declaration of parentage and a guardianship order within 10 days of the child entering Ireland, or 20 days in exceptional circumstances.
— Conall Ó Fátharta
