State closes argument in surrogacy case


A child can only have two parents, a mother and a father, and the mother must be the woman who gave birth, counsel for the State told the High Court yesterday in a case involving surrogacy and motherhood.

Mary O’Toole SC was making closing submissions in 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 children’s mother on their birth certificates.

Ms O’Toole said the 1983 abortion amendment to the Constitution made it “absolutely clear” that the mother of a child was the woman who gave birth to the child.

She said the common law principle mater semper certa est (motherhood is always certain) was imported into the Constitution in 1983 via article 40.3.3. The legislature could allow for the transfer of maternal rights, but the mother must always be the birth mother.

“There is no other basis for motherhood,” she said.

The applicants had sought a declaration from the court that the genetic parents were the legal parents of the twins. At present, the surrogate mother, their aunt, is their legal parent. She is the sister of the genetic mother in the case, and is not objecting to the couple’s application.

Mr Justice Henry Abbott suggested that article 40.3.3 did not set out to define motherhood. “Whatever else was debated during that referendum, this wasn’t part of the debate,” he said. Ms O’Toole said it nevertheless had defined motherhood. This was an “unavoidable and inescapable premise” the court had to follow.

Status of Children Act

She also said that regarding legislation such as the Status of Children Act 1987, the court must interpret the statutory mention of mother as being confined to the birth mother, because the Constitution required this.

Blood tests referred to in the Act to establish parenthood, could not be used by a genetic mother to assert her parentage, she said. The Act only mentioned mothers in the context of establishing the birth mother, if for example there was a mix-up of babies in a hospital.

“Those provisions don’t apply to a mother claiming motherhood solely on the basis of genetics,” she said.

She told the court that in Roche v Roche, a case involving the right to life of frozen embryos, the court had also found a mother was the woman who was pregnant and gave birth to the child. “It can’t be the mother looking at the frozen embryo,” Ms O’Toole said.

She also argued that genetic connections alone between children and their parents had not been given “huge significance” in case law and did not give a “presumptive right” to genetic fathers to have guardianship of their children.

The State could legislate to allow surrogate arrangements so that birth mothers’ rights were respected and some maternal rights transferred to another person, but that would engage “a whole range of social and political issues that are a matter for the legislature”.

Adoption suggested

Ms O’Toole said the Constitution precluded the court from giving a declaration of parentage to the genetic parents and could not give them both guardianship. She suggested the genetic father apply for guardianship alone or that the couple could apply to adopt the twins.

The case continues.