On 5 March, Judge Henry Abbott delivered a landmark ruling allowing the genetic mother of twins born to a surrogate to be registered as their mother on their birth certificates.
Bulletin readers may remember that in January this year, the High Court for the first time permitted media reporting in a family law context in this case.
The case concerned twins born to a gestational surrogate who was the sister of the genetic mother. The registrar of births refused to name the genetic mother on the birth certificate on account of the principle of mater semper certa est – motherhood is always certain. The High Court held that this irrebuttable presumption violated the right to fair procedures protected by the Irish Constitution. Judge Abbott noted that there was nothing under Irish legislation that affirmed the principle that motherhood is always certain.
When considering who in law is entitled to be treated as the child’s parent, the Court noted that where the paternity of a child is in question, DNA testing is relied on. The Court concluded that the genetic relationship between a mother and child should be considered when deciding who is the mother of a child. IVF and surrogacy arrangements have rebutted the principle that motherhood is always certain and so Judge Abbott found there was legal authority to allow him to conclude that the principle no longer applies.
This significant ruling may lead to an avalanche of cases before the Court as up until now the genetic mother of children born to a surrogate could not become legally registered as the child’s mother. Solicitor for the couple Marion Campbell said “It is hoped now that much-needed legislation in relation to this whole difficult area of surrogacy will be brought in and that children born by way of surrogacy arrangements will have their rights enshrined in such legislation.”
The State has yet to decide whether to appeal the decision. The Minister for Justice and Equality Alan Shatter says that he hopes to publish legislation to address certain aspects of the law this year.
Government appointed Child Rapporteur Geoffrey Shannon said legislation on surrogacy should be introduced urgently following this ruling. “Children should not be left in legal limbo”he said.
Click here to read the case in full
Click here to read a blog from Administrative law matters
Click here to read a press release from Marion Campbell solicitors
Click here to read an article from the Irish Times
On the same day, the High Court also ruled in favour of a father of a child born to a surrogate in India. The applicant was the biological father of a child who was born to a surrogate with the use of an anonymous donor egg. The father and his partner were named as the child’s mother and father on her birth certificate which was issued in India.
Before an Irish passport could be issued for the child, the Department of Foreign Affairs advised that a declaration of parentage must be obtained from the Irish Courts.
Justice Abbott said that he was satisfied that the surrogate mother had no role other than as a surrogate and was unlikely to play any other role in the child’s future. The Court was satisfied that the best interests of the child could be best served in being cared for and raised with the ‘de facto family’ of the man and his partner. On this basis, the Court declared the man to be the father of the child and appointed him as guardian. In addition he declared it in the best interest of the child to be issued with an Irish passport.
Whilst the outcome of this case is a positive step for children born to a surrogate attaining legal rights and ending statelessness, it further highlights the legal vacuum in existence. Moreover, it confirms the need for legislation which would eliminate the necessity of Court orders for such arrangements.