Genetic parents win surrogate twins case

A landmark decision by the High Court yesterday means the genetic mother of twins born to a surrogate is entitled to be registered as their mother on their birth certificates.

The genetic parents and their children sought declarations under the Status of Children Act that the genetic mother is the children’s mother entitled to be registered as such and the register of births should be corrected to reflect their true parentage. Under the Act, a child may seek a declaration of parentage from the courts on the basis of a DNA test.

The surrogate mother, who is the sister of the genetic mother, supported the application. None of the parties can be identified by court order. The Attorney General and the chief registrar opposed the action on grounds including the surrogate or gestational mother is in law the mother of the children.

Application refused

The couple involved could not have children but provided the genetic material which was implanted in the surrogate. Their application to be registered as the children’s parents on their birth certificates was refused by the office of the chief registrar in 2011.

The refusal was on grounds there was no basis in law to change the name of the mother on the birth certificate from the surrogate mother to the genetic mother. The principle of mater semper certa est – motherhood is always certain – applied, it was argued.

Mr Justice Henry Abbott rejected those arguments and granted a declaration that the genetic mother is the mother of the twins and she and the children are entitled to have this fact recorded on the children’s birth certificates. The judge said there was nothing in the Irish legislative context that positively affirmed the principle mater semper certa est and rejected the State’s arguments that the 1983 anti-abortion amendment to the Constitution confirmed the birth mother as the legal mother.

Genetic material

The word “mother” in that article of the Constitution applied when the foetus was in the womb and not otherwise, he ruled. While the science of epigenetics and genetics was likely to develop in the future, it was most unlikely epigenetics would ever trump the deterministic quality of chromosomal DNA, he also found.

While the input of a gestational mother to an embryo and foetus was to be respected and treated with care, the predominant determinism of the genetic material in the cells of the foetus allowed a fair comparison with the law and standards for determination of paternity. To do otherwise would be invidious, irrational and unfair, he said.

The inquiry in relation to maternity ought to be made on a genetic basis and, on maternity being proven, the genetic mother should be registered as the mother, he said. The fundamental issue concerned who, in law, is entitled to be treated as the children’s parents, he said. In a surrogacy, the issue was whether the principle mater semper certa est could be challenged within the current legal and constitutional framework here.

The principle that motherhood is always certain had achieved “prominence, acceptance and fixity” because, prior to IVF and surrogacy, the possibility of challenging the principle did not arise, he noted.

There was ample legal authority to allow him conclude the principle no longer applies post-IVF, he found.

The judge adjourned the case to next month to allow the sides consider his judgment.