Judgment later in landmark surrogacy case
When the people voted for the 1983 abortion amendment to the Constitution they were not addressing the wider issue of who a mother is, the High Court was told yesterday.
Rebutting arguments made by the State that the amendment defined a mother as the birth mother only, Gerard Durcan SC said article 40.3.3 was intended to apply to the period during which a woman carried a child. It did not apply after birth. He said the Supreme Court had ruled, in a case involving the right to life of a frozen embryo, that the amendment did not apply to embryos before implantation.
The Supreme Court had emphasised the amendment had “limited purpose and limited effect”. Just as it did not apply to a period prior to implantation, it did not apply to a period after birth, Mr Durcan said.
To say it had a wider effect “would be entirely to ignore the basis of the logic of the Supreme Court”. The court had also recognised that in-vitro fertilisation was “probably not contemplated at the time”.
He was making closing submissions on the final day of a landmark case challenging the refusal of the State to allow the genetic mother of twins born to a surrogate mother to be listed as the mother on their birth certificates.
The applicants sought a declaration from the court on behalf of the twins and their genetic parents that the genetic parents are the legal parents. The surrogate mother, their aunt, is their legal parent. She is the sister of the genetic mother, and is not objecting to the couple’s application.
Mr Durcan said the State’s reliance on mater semper certa est – motherhood is always certain – 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 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.
The legislature having adopted a process of relying on inherited characteristics to identify a parent under the Status of Children Act, 1987, had “reflected that fact”, he said.
Mr Durcan also told Mr Justice Henry Abbott that the State’s suggestion the couple could adopt the twins would be problematic. Because the surrogate mother was married at the time of the twins’ birth, she could not voluntarily put the children up for adoption under current law. The children could be put up for adoption on grounds of abandonment by their parents, but this would cause difficulties since the genetic father was also the father on the birth register and so was the parent.
“It would be much more difficult to say he has in the circumstances,” Mr Durcan said.
But Mary O’Toole SC, for the State, argued the surrogate mother’s former husband was never registered as the father and had signed declarations stating he was not the father. The presumption of legitimacy, which assumed the husband of a woman who gives birth is the father, had been “displaced”, she said.
Mr Justice Abbott reserved his judgment.