Agencies urge broad definition of motherhood in Supreme Court surrogacy case
Genetic mother of twins not recognised by State, despite granting of legal status to father
Senior counsel Nuala Butler: said law should be able to accommodate the “different strands of motherhood” arising from rapid advances in assisted reproduction and surrogacy where up to three women could be involved in the birth of a child. Photograph: Frank Miller
Motherhood cannot be defined merely on the basis of genetic links or giving birth, and new laws governing assisted reproduction and surrogacy must vindicate the rights of all involved, particularly the children, the Irish Human Rights Commission and Equality Authority have told the Supreme Court.
The State’s refusal to register the genetic mother of twins born to a surrogate as their legal mother amounts to unequal treatment in circumstances where the genetic father was registered as their legal father, senior counsel Nuala Butler, for both agencies, also argued.
The agencies advocated a broader definition of motherhood than that urged by the State – which contends a mother is the woman who gives birth to a child – or by the genetic parents, who insist it is based on genetic links, counsel outlined.
Motherhood, she submitted, includes pregnancy, giving birth, rearing a child and social and family links. While she was not saying the law should recognise more than one mother simultaneously, it should be able to accommodate the “different strands of motherhood” arising from rapid advances in assisted reproduction and surrogacy where up to three women could be involved in the birth of a child.
There is “a legal vacuum” and legislation is needed to address the issues arising from the scientific advances, she said. Legislation could be drafted so as to ensure the rights of all involved are vindicated.
Neither agency accepted the State’s “appalling vista” that, if the genetic parents were declared the twins’ legal parents, that would result in some women who had children using donated eggs being “de-mothered”.
The State’s freedom to legislate in this area was not restricted by the High Court decision permitting these genetic parents being registered as the legal parents.
Counsel was making submissions in the appeal by the State against that High Court decision granting the challenge by the twins and the couple to the refusal to register the mother as the legal parent of the twins.
Gesture of love
Because the genetic mother cannot bear children herself due to a disability, her sister had agreed, as a gesture of love, to be implanted with genetic material from the couple and the twins were born as a result.
In the appeal, the State contends motherhood is defined by giving birth. It argues new laws will be enacted to address the position of the genetic parents and the court should not uphold the High Court decision because it has wider implications for succession, property and other rights.
The genetic parents, supported by the surrogate, contend their situation can be resolved by the issuing of a declaration under the 1987 Status of Children Act that they are the legal parents of the twins.
In arguments for the couple , senior counsel Gerry Durcan said it was unreasonable for the State to argue they should adopt rather than be recognised as the children’s legal parents.
Closing arguments for the State will conclude today.