‘Blood link to child determines parenthood’

Motherhood can no longer be determined on the basis of giving birth, and both it and fatherhood are instead determined according to “inheritable characteristics” or a “blood link” to a child, the Supreme Court was told yesterday.

The law in Ireland since 1987, when the Status of Children Act was introduced, is that a declaration of parenthood can be issued on the basis of “inheritable” characteristics and that means the genetic parents of twins born to a surrogate are entitled to a declaration they are the children’s legal parents, Gerry Durcan said.

Any such declaration would be binding on both the Registrar of Births and the State and would require the twins’ birth certificates to be amended to identify the genetic parents as their legal parents. As of now, their birth certificates state the surrogate is their mother and their father is the genetic father.

The current state of Irish law means any woman who has given birth to a child using donated eggs is not as of now the legal mother of that child, counsel said.

That “unfortunate” position arose from the State’s failure over years to legislate to deal with assisted reproduction and surrogacy issues, he added. His clients position had to be addressed on the law as it is, not on the basis that new laws are being prepared to deal with assisted reproduction issues.

The position set out in the 1987 act was inconsistent with the State’s arguments in its appeal against a High Court decision the genetic parents are not entitled to be registered as the twins legal parents on their birth certificates, counsel added.

In its appeal, the State contends that the mother of a child is the woman who gives birth to that child.

Mr Durcan said he was seeking a declaration under the 1987 act that the genetic parents are the twins legal parents. That act required, before such a declaration could be issued, that the blood link between a child and a parent be determined and there was no dispute in this case his clients were the genetic parents.

The appeal continues.