The State has won its appeal against a High Court ruling that the genetic mother of twins born to a surrogate should be registered as their legal mother on their birth certificates. The Court found that the birth mother should be presumed to be the legal mother, but that the legal status of surrogacy and the children born through it was ultimately a matter for the Oireachtas.
In her ruling, Chief Justice Susan Denham held there was no definition of “mother” in the Constitution.
She said there was nothing in the Constitution that would prevent the development of appropriate laws on surrogacy, and added that any law on surrogacy would affect the status and rights of people, especially those of children, and create complex relationships.
Ms Justice Denham found that there was a lacuna in the law and it should be addressed in legislation and not by the court.
The case was brought by the genetic mother of twins whose sister gave birth to them as a surrogate. She sought to be named as mother on the children’s birth certs but the State insisted that only the woman who gives birth to a child can be recognised.
In this case the woman who gave birth to the children is the sister of their genetic mother – and both consent to having the genetic mother recognised on the children’s birth certificate.
In a landmark ruling last year, the High Court had decided that genetics can indeed be used to determine maternity just as it can paternity. But the State appealed that decision to the Supreme Court where the seven judge panel delivered their verdict this morning.
Minister for Health Leo Varadkar this afternoon said: “Legislation on assisted human reproduction, surrogacy and gamete donation is long overdue. I intend to bring a memorandum for an Assisted Reproduction Bill to Government by year’s end.
“I will consult with Justice Minister Frances Fitzgerald, my Government colleagues and others on the preparation of this bill. It is likely to deal with the issues of legal parentage, surrogacy, egg and sperm donation, and other related issues.”
“Our prime concern here is that any law protects, promotes and ensures the health and safety of parents, others involved in the process such as donors and surrogate mothers, and most importantly, the children who will be born as a result of assisted reproduction.”
Minister Fitzgerald also welcomed the decision.”If Judge Abbott’s ruling had been allowed to stand, hundreds of women who have given birth to children using donated eggs would have doubt cast on their status as their children’s mother” she said.
“Those women and their children now have legal certainty.”
In a dissenting judgement, Mr Justice Frank Clarke said that both the surrogate and genetic mother have some of the characteristics of motherhood.
He appreciated that a legal regime where two people could be regarded as having characteristics of motherhood would raise major legal issues but said the situation could be addressed via legislation.