So, the government have won their surrogacy case in the Supreme Court. Birth mothers will remain legal mothers for the moment and will have their names recorded on the birth cert, but the Oireachtas will basically have the power to define the term, “motherhood” as the court rejected the State’s argument that the legal principle mater semper certa est or “the mother is always certain” was a part of Irish common law.
Not that the government will be complaining: it’s not every day that a parliament gets to define a crucial biological and social reality as it pleases.
The Irish Times has a summary [1] of the individual judgments issued by the various judges, and it’s in the last two that the most coherent path forward emerges.
Mr Justice John Murray said there was a “manifest lacuna” in the law and it was “for the Oireachtas to make the value judgment based on best policy, as other countries have had to do, as to whether and in what circumstances assisted reproduction by means of surrogacy should be permitted”.
Dissenting, Mr Justice (Frank) Clarke said the genetic mother and birth mother both have some of the characteristics of mothers as that term is currently used in Irish law. He did not believe scientific advances meant a loss of status as “mother” for either a birth or genetic mother.
Pending the necessary legislation, he considered the “least bad solution” required a birth mother and genetic mother to be both registered in some way and the Registrar of Births should put measures in place for that. The court should declare the genetic mother the mother of the twins without prejudice to the status of the birth mother, he said.
First, Justice Clarke, to his credit, actually looked reality in the eye. It’s just a fact that both a genetic mother and a surrogate mother have “some of the characteristics” of motherhood; or, in other words, it’s clear that surrogacy splits motherhood in two. Justice Clarke’s suggestion of a dual birth-cert is certainly one way of handling that: but there’s another rather obvious one suggested by Justice Murray’s judgement.
After all, as he points out, this is not a mandate to “legislate for surrogacy.” We are still absolutely free to legislate against it – regularising the situation of children already conceived or born (and thus dispensing with the red herring that we need to legalise regulate surrogacy in order to provide legal clarity for these families) and then ban it, as France and Germany have.
Are the government likely to change course? It might seem unlikely: but consider the example of French Prime Minister Manuel Valls.
The Socialist Premier supported surrogacy in 2011, describing it as “an inevitable development”. But after learning more about the reality of the practice and listening to arguments put forward by opponents from across the political spectrum, he changed his mind, this year calling surrogacy “an intolerable commercialisation of human beings” and saying that “France is opposed to surrogacy because she is opposed, in the name of her values, in the name of progress and humanism, to all forms of commercialization of human beings and experimentation in this area.”
To be clear, he is not opposed only to commercial surrogacy but to surrogacy in all its forms.
Valls has become something of a pioneer on this. He and Foreign Minister Laurent Fabius proposing a concrete solution to the oft-cited problem of surrogacy being “unbannable” because couples will just go abroad to find a surrogate. Valls and Fabius are pushing for an international treaty which would require countries where surrogacy is legal to respect the laws of places where it isn’t, and refuse to offer surrogacy services couples from those countries.
Could our Health Minister, Leo Varadkar, have a similar “Road to Damascus” moment when he learns more about the realities of surrogacy? Mr Varadkar has shown a certain open-mindedness before: we can but hope after calling his colleagues in France and Germany he will do so again.