The Government hopes to introduce legislation to allow surrogacy and other forms of assisted human 
reproduction (AHR) later this year, the High Court heard yesterday.
However, The Irish Independent reports that in practice it may not be published until next year.
In her submissions to the court on behalf of the State, Mary O’Toole SC said the Minister for Justice intends to publish the heads of a Bill entitled Family Relationships and Children Bill..
The case before the High Court involves two genetic parents who are seeking to have the birth certs of their children changed to have the genetic mother named as the mother even though she is not the birth mother. Currently, Irish law recognises the birth mother as the legal mother, and does not recognise surrogacy arrangements.
Ms O’Toole said that Justice Minister Alan Shatter intends to take on board findings of both the Law Reform Commission and the Commission on Assisted Human Reproduction (CAHR).
The CAHR report, published in 2005, recommended legislation to allow surrogacy and sperm and egg donation. It recommended that legislation permit any couple, whether married, unmarried or same-sex, be allowed to avail of such services.
Ms O’Toole made the comments in response to questions from Mr Justice Henry Abbott who asked if there was any plans by the Government to introduce legislation to deal with issues related to surrogacy.
If there were plans to introduce legislation, the judge added, he was minded to adjourn the case before him.
The judge raised the issue after Ms O’Toole told the court it could not ignore the constitutional definition of motherhood, which was that the person who gives birth to a child is defined by law as that child’s mother.
The only way that this could be deviated from is if legislation allowing parental rights to be transferred in the manner sought by the applicants was introduced, she said.
In reply to the judge’s question, Ms O’Toole said plans to regulate the area of assisted human reproduction were included in the current Programme for Government.
The minister intended to publish proposed legislation in 2012 because of the time taken up by dealing with abortion legislation, she said.
In her submissions asking the court to dismiss the application, Ms O’Toole said the State rejected any idea that genetics were the “triumphing factor” when it came to determining the parenthood or guardianship of children, irrespective of the fact that in this case the surrogacy arrangement had been planned by the parties involved.
While the State was not taking any steps to undermine or hinder the applicant’s living together as a family as the law currently stands the court could not accede to their requests.
She was replying to submissions made on behalf of the applicants Gerard Durcan SC who said that the twins are being deprived of their right to be part of a constitutional family while the law fails to recognise their biological mother.
Ms O’Toole added that Article 40.3.3 mades it “absolutely clear” that the mother of a child is the woman who gives birth to it.
She said that the definition of the mother was set out in the Constitution following the 1983 abortion referendum.
Mr Justice Abbott also said the self-evident presumption of motherhood had been “rattled” by scientific advances, including DNA technology.
“The only certainty is who bears the child,” said the judge.
The State said it would not hinder any attempt by the genetic father to apply to be a legal guardian of the twins.
Ms O’Toole said that science had got us to a point where the role of the mother could be ‘split’ in the laboratory.
But she argued that this did not remove the basic premise that the mother who gives birth to the child is the mother as a right of law and public law.