Judgment gives clear guidance for legislation on surrogacy

Though a landmark ruling at the Supreme Court has found against the genetic mother of twins who wanted to be named on their birth certificates as their legal mother, it has provided clear guidance for Government to produce legislation on surrogacy.

The hospital where the twins were born had registered the surrogate mother as their legal mother. The children, created with an egg from the genetic mother and sperm from her husband, had been carried by the genetic mother’s sister as surrogate. It was the altruistic act of a sister for a sister, one of the least complex forms of surrogacy possible.

In 2010, the genetic parents, supported by the surrogate mother, wrote to the chief registrar of births, deaths and marriages asking that the record be amended so the genetic mother would appear as legal mother on the register.

After legal advice, the registrar responded that he did not have the power. The family appealed to the High Court.

In March 2013, Mr Justice Henry Abbott ruled the genetic mother was entitled to be registered as the twins’ mother on their birth certificates.

The State appealed his findings to the Supreme Court.

Mother reference In her judgment yesterday, the Chief Justice, Mrs Justice Susan Denham, said there was no definitive definition of “mother” in the Constitution. While article 40.3.3, commonly known as the abortion amendment, referred to “mother”, the reference was specific to that article.

There was nothing in the Constitution that would inhibit the development of appropriate laws on surrogacy, the Chief Justice said.

She also brought clarity to the maxim mater semper certa est – motherhood is always certain – put forward by the State as an irrebuttable presumption established in law.

The maxim was “not part of the common law of Ireland”, she said. The words simply recognised a fact, which existed in times gone by and up until recently, that a birth mother was the mother, both gestational and genetic.

Mrs Justice Denham also found none of the current legislation addressed the issues arising from surrogacy and such legislation was “quintessentially a matter for the Oireachtas”.

In a dissenting judgment, Mr Justice Frank Clarke said he did not believe scientific advances meant a loss of status as “mother” for either a birth or genetic mother. And the “least bad solution” was for both birth mother and genetic mother to be registered in some way.

He agreed the Constitution did permit the State to regulate surrogacy.

As far back as 2005, the Commission on Assisted Human Reproduction had proposed legislation for the regulation of surrogacy. Former minister for justice Alan Shatter included surrogacy in his Children and Family Relationships Bill, but in its latest version, under Minister Frances Fitzgerald, surrogacy was omitted.

Donor eggs

The omission means assisted human reproduction will have to be tackled in a stand-alone piece of legislation. And while yesterday’s example of surrogacy was relatively straightforward, legislation will have to address more complex scenarios. These will include where a child is born to a surrogate mother using donor eggs or donor sperm, where neither of the commissioning parents have a genetic link to the child, where the gestational mother is also the egg donor and where the mother has been paid.

Child rapporteur Geoffrey Shannon points out the issues are complex, but they are also urgent. There are children currently in legal limbo because of the lacuna in Irish law.

In a practical sense, that means people such as the genetic mother of the twins at the centre of yesterday’s case can’t legally carry out simple tasks such as signing for her children to go on a school outing or giving permission to a hospital to carry out medical procedures. Passports must be signed for by the surrogate mother, which is manageable when the surrogate is a sister, but complex if she is, for example, a woman living in a foreign country who has been paid.

Minister for Health Leo Varadkar has promised a memo on legislation before the end of the year. It will be drafted now in the knowledge that there is no constitutional impediment.

It is hoped the legislation will be passed next year, but a memo is a long way from an Act of law and a long time in the life of a child.