Landmark surrogacy case to be appealed

The Department of Social Protection has confirmed it will appeal a landmark ruling on surrogacy that allowed a genetic mother to be named as the legal mother on the birth certificate of her children.

In a statement today the department said the appeal was necessary “to bring certainty to this vital area of law and to ensure that the legislature’s scope to legislate is absolutely clear”.

The family’s solicitor has said she is very concerned about the delays her clients will now have to face.

In March this year, Mr Justice Henry Abbott ruled the genetic mother of twins born to a surrogate was entitled to be registered as their mother on their birth certificates. The surrogate mother, the sister of the genetic mother, had supported the couple's application. The judge had rejected arguments that the 1983 anti-abortion amendment to the Constitution confirmed the birth mother as the legal mother.

In a statement today, the Department of Social Protection said while it was “extremely mindful of the family at the centre of this case”, the Government had agreed the judgment was “of exceptional public importance” and should be appealed.

“The judgment raises important questions about how motherhood may be determined under Irish law and has potentially very serious consequences which could, by linking motherhood exclusively to genetic connection, affect a potentially large number of families,” it said.

“It may also have the effect of tying the hands of the Oireachtas in how it may legislate in the future for the complex areas of surrogacy and assisted human reproduction.”

The statement said clarity was especially important because the Government was “committed to legislating”. This was being prepared “with a view to being brought to Government later this year”, it said.

Marion Campbell, solicitor for the couple at the centre of the case, said she was very concerned for her clients and their children because of the long delay the Supreme Court appeal will create. An application could be made to have the case fact tracked, she said, but it might not be successful. And even if it were, it could be two years before the case is heard.

“The children could be teenagers by the time this appeal is heard,” she said. Her clients were not surprised by the decision, but were worried about the future, she said. She also highlighted the cost to the taxpayer that the case will involve.

Ms Campbell said she had two other families in the “exact same circumstances” with a family member expecting a child on behalf of a genetic parent. She had also had very many contacts from people trying to obtain declarations of parentage for children born to surrogate mothers in countries including India, Ukraine and Georgia.