The Supreme Court has rejected the claim of a woman wishing to be registered as the legal mother of her genetic twin children, who were born by surrogate. By a six-to-one majority, the Supreme Court overturned the judgment of Abbot J of the High Court, who had ruled in favour of the mother. The Supreme Court criticised the absence of regulation in this area and called on the Government to introduce legislation on surrogacy and assisted human reproduction.
At issue in this case was how the law defines a “mother” for the purposes of registering the birth of a child. The Supreme Court found that the legislation setting up the registration scheme was drafted at a time when differentiating between the genetic mother and the birth mother of a child was unnecessary as surrogacy was not scientifically possible. The Supreme Court, led by Chief Justice Denham, found that neither common law nor the Constitution would allow them to reinterpret “mother” to differentiate between birth mother and genetic mother and it ruled that the birth mother is the one to be registered on a child’s birth certificate, as it always had been.
However, the Court said this was not sustainable and that the current situation creates injustices for families opting for methods of assisted reproduction. Issues of parentage put into question the legal rights of children such as citizenship, support and inheritance. None of these were addressed by a regulatory framework. The Supreme Court instructed the Oireachtas to introduce legislation on assisted reproduction to develop a comprehensive regulatory system.
All of the judgments levelled heavy criticisms against the Government for failing to keep apace with scientific advances. The Chief Justice said that other States had responded to modern medical developments by passing legislation to govern and regulate the area; however “neither the Status of Children Act, 1987, nor the Civil Registration Act, 2004, nor any legislation in Ireland currently addresses the issues arising on surrogacy birth of children.” O’Donnell J. emphasised that their conclusion was only dependent on the narrow focus of the case. The majority of the Supreme Court was of the opinion that this was a lacuna which had to be addressed by the Oireachtas, and not the Courts. The Chief Justice stated, “The issues raised in this case are important, complex and social, which are matters of public policy for the Oireachtas.”
The Child and Family Relationships Bill had previously contained provisions on surrogacy which were recently removed while the Government awaited the decision of this case. In response to the current case, Minister for Health, Leo Varadkar, accepted that legislation on issues of assisted human reproduction was “long overdue”. He pledged that a memorandum on legislation would be forwarded to Government by the end of the year, and it would deal with issues of legal parentage, surrogacy and gamete donation. “I will consult with Justice Minister Frances Fitzgerald, my Government colleagues and others on the preparation of this Bill” said Minister Varadkar.
Click here to read the judgment from Chief Justice Denham in MR and DR & ors. v An t-Ard-Chláraitheoir & ors. [2014] IESC 60.
The texts to all five judgments are available on www.courts.ie.