The genetic parents of twin girls born to a surrogate have rejected the Government’s claim that a birth mother 
should be the only type of mother under Irish law.
The married couple with whom the twins live would face substantial legal hurdles and unprecedented litigation if they tried to adopt the young sisters, the High Court was told.
The Government bases its claims on the 1983 right-to-life amendment and the Supreme Court’s ruling in the frozen embryo case, according to The Irish Independent.
Lawyers representing the couple have insisted that the 1983 abortion amendment was “limited” and designed to prevent termination of pregnancy.
The case is expected to be appealed to the Supreme Court by the losing side, owing to the significant legal issues raised.
Mr Gerard Durcan SC, counsel for the genetic parents, said that the 1983 abortion referendum did not define or address the rights of parentage after birth.
Mr Durcan said that the powers of the Oireachtas would be “fettered” if the Attorney General was correct to say that the birth mother was the only mother for the purposes of Irish law.
Mr Durcan told High Court Judge Mr Justice Henry Abbott that Article 40.3.3 of the Constitution – the right-to-life provision – refers only to the gestational mother during the “temporal period” from implantation to birth and does not address “wider issues”.
Mr Durcan said that Article 40.3.3 does not define, “for all purposes”, the meaning or status of a mother.
The hands of the Oireachtas would be tied in circumstances where the fettering of lawmakers’ discretion was not required by the right-to-life provision or the Supreme Court’s interpretation of that provision in the so-called frozen embryo case, added Mr Durcan.
The Attorney General has insisted that the birth mother is the only mother for the purposes of Irish law because of the Latin maxim “mater semper certa est” or “motherhood is always certain”.
But Mr Durcan said that scientific advances including blood, DNA and genetic inheritance tests had brought us to a point where fatherhood is certain but uncertainty has “entered into the picture” in respect of motherhood.
The Attorney General said that the married couple, who want to be registered as the parents of the twins on their birth certificates, had not yet explored adoption. The genetic father has not yet applied to be guardian.
In response, Mr Durcan that the suggestion that the couple could adopt the twins would be problematic.
Because the surrogate mother was married at the time of the twins’ birth, she could not voluntarily put the children up for adoption under current law. The children could be put up for adoption on grounds of abandonment by their parents, but this would cause difficulties since the genetic father was also the father on the birth register and so was the parent.
“It would be much more difficult to say he has in the circumstances,” Mr Durcan said.
But Mary O’Toole SC, for the State, argued the surrogate mother’s former husband was never registered as the father and had signed declarations stating he was not the father. The presumption of legitimacy, which assumed the husband of a woman who gives birth is the father, had been “displaced”, she said.
Mr Justice Abbott reserved his judgment.