Surrogacy decision opens door to genetic mothers' court actions

BACKGROUND:In 2010, a superintendent registrar for births received a letter from a solicitor for the genetic parents of twins seeking a correction on the registry of births.

The twins’ legal mother was registered as their surrogate mother.

The genetic couple and the surrogate mother wanted to change the records. They wanted the genetic mother register- ed as the twins’ legal mother.

They had entered an agreement between themselves with the help of an IVF clinic that the surrogate mother, the genetic mother’s sister, would carry the embryos of her sister and her sister’s husband so that they could have children of their own. The twins were born and, once discharged from hospital, lived with the genetic parents, a married couple.

There was no legislation to govern their situation, though a 2005 report from the Commission on Assisted Human Reproduction had recommended it should be introduced.

The couple supplied a statutory declaration to the registrar of births along with DNA evidence and a letter from the IVF clinic involved describing what had transpired in support of their application to have the register changed.

Chief registrar Kieran Feely sought legal advice on what should be done. He concluded he did not have the power to change the mother’s name as he could not treat the surrogate mother’s entry on the register as “an error of fact” under the Civil Registration Act 2004.

He wrote to the couple’s solicitor in June 2011 to tell them his decision. The couple took a case seeking to overturn it.

The case came before Mr Justice Henry Abbott.

‘Motherhood is always certain’

The State argued that the Latin maxim of mater semper certa est – motherhood is always certain – applied in the case. It meant only the birth mother could be registered as the twins’ mother.

Mary O’Toole SC also said “mother” had been defined by article 40.3.3 of the Constitution as the birth mother and that could not be altered.

Counsel for the couple, Gerard Durcan SC, argued the State’s reliance on mater semper certa est came from a time when the mother was always the birth mother and the father could be uncertain. But times had changed, and with genetic testing the identity of the father could now be certain.

Other women could carry a child, but only a mother and father could provide the ovum and sperm that were responsible for the “essential components” of the child, he said. He also emphasised the importance of “blood link” highlighted in Supreme Court cases and said blood link could now mean genetic link.

There was evidence from genetic experts on epigenetics, the effect of the environment on a growing foetus, and whether the gestational mother had more impact than the genes of the genetic mother.

Mr Feely also gave evidence and said dealing with surrogacy was a rarity in his office. A predecessor had told him to apply the mater semper certa est rule.

‘Tragic’

Dr Mary Wingfield, clinical director of the Merrion Fertility Clinic and a member of the Commission for Assisted Human Reproduction, agreed with a recommendation that a child born through surrogacy should be “presumed to be that of the commissioning couple”. Legislation was badly needed, she said. And it was “tragic” the a couple had to resort to court to resolve surrogacy issues.

Having measured the arguments, Mr Justice Abbott ruled in favour of the couple. He said epigenetics were “not of such significance” as to override the significance of DNA. He was particularly influenced by cases cited by the applicants that found “the concept of blood relationships or links are paramount in deciding parenthood”. And he noted the lack of legislation in Ireland on surrogacy, which meant surrogacy contracts were not illegal.

The orders to be issued to the couple following this judgment are due to be drawn up in mid-April by Mr Justice Abbott.

The decision opens the door to genetic mothers in the same situation to go to court for a declaration stating their parenthood and to take it to their local registrar so they can be named on their children’s birth certs.

The State has 21 days to appeal Mr Justice Abbott’s decision to the Supreme Court and it is looking likely, given the constitutional issues at stake, that it will. At best the case will be heard as a priority in nine months if Chief Justice Mrs Justice Susan Denham agrees to accept it on the priority list. At worst it could take four years. It will cost the taxpayer a considerable amount.

The children involved in yesterday’s case could be a good deal older before their genetic mother’s name is finally on their birth certificates.