The genetic mother of twins born to a surrogate has the right to be recognised as the legal mother, the High 
Court has ruled.
The ruling means that the legal principle ‘the mother is always certain’ no longer applies in Irish law unless the Government chooses to introduce amending legislation.
The genetic mother of the twins, who were born to her sister using her embryos, challenged the refusal of the Chief Registrar to record her name on the birth certificates, RTE News reports.
At a hearing in January, the court was told there was no provision to record anyone other than the woman who gave birth to a child as the mother.
This morning, the High Court gave a number of groundbreaking declarations, including that the genetic mother is entitled to have her name on the birth certificates.
Lawyers for the woman and her husband said the couple and their children were being deprived of their right to be part of a constitutional family, while the State failed to recognise their biological mother.
Senior Counsel Gerard Durkan told the court the children were entitled to the protection and security of a legal family, regardless of how they were conceived and born.
The State, in defending the case, was seeking to have the biological truth ignored, he said.
The maxim applied by the Chief Registrar of “Mater Certa Semper Est” – motherhood is always certain – was of little use now in the context of scientific advancement and the regime in place under the Status of Children Act, which uses DNA to confirm parentage.
Under that act, any child may go to court to seek a declaration of parentage and the test used was a DNA test.
If the biological mother of the children was to undergo a DNA test, she would be confirmed as the mother.
The surrogate mother if subjected to the same test would be excluded as the mother, yet she was the legal mother according to the register of births.
Mr Justice Abbott granted a declaration that the genetic mother in the case is the mother of the twins.
He further ruled that the genetic mother 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 “Mater Certa Semper Est”.
He said 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.
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 permits a fair comparison with the law and the standards for the determination of paternity.
It would be invidious, irrational and unfair to do otherwise, he said.
To achieve fairness and constitutional and natural justice for both the paternal and maternal genetic parents the inquiry in relation to maternity ought to be made on a genetic basis and on being proven the genetic mother should be registered as the mother, he said.