Genetic mother not entitled to be registered as mother of twins born to surrogate

Denham CJ: Assisted human reproduction - application that genetic mother be registered as mother of twin children delivered by surrogate - appeal from decision of High Court (Abbott J) - whether "genetic mother" or "gestational mother" should be registered as mother of children - gestational mother being sister of genetic mother - refusal of Superintendent Registrar to register genetic mother as mother of child - mater semper certa est ("the mother is always certain") - order by High Court that genetic mother be so registered - appeal by state - Article 40.3.3° of constitution - whether principle of mater semper certa est gave rise to irrebuttable presumption - pater est quem nupitae demonstrant ("he is the father whom the marriage indicates to be so") - Civil Registration Act, 2004, ss 19 and 60.

"Under the current legislative framework it is not possible to address issues arising on surrogacy, including the issue of who is the mother for the purpose of the registration of the birth. The issues raised in this case are important, complex and social, which are matters of public policy for the Oireachtas. They relate to the status and rights of children and a family. It is important that the rights of the twins, the parent respondents, the notice party and the family are vindicated pursuant to the law and the Constitution. Neither the common law nor statutory law to date address the issue of the registration of the fourth named respondent on the certificate of birth of children born by a surrogacy arrangement."

Hardiman J: Urgent need for legislation on surrogacy - law reform being a matter for the Oireachtas - role of courts in legislating.

"This is an invitation to overrule the established understanding of “mother” and then to legislate in the area left vacant, and to do so without any evidence-based assessment of the merits of the new dispensation. If the Court were to accede to the Respondents’ invitation, it would dangerously approach illegitimacy."

O'Donnell J: Scientific and medical advances - assisted reproduction - absence of legislation - resolution of problems through litigation in absence of legislation - registration of births - epigenetics - presumption of certainty of motherhood - whether presumption consistent with constitution - adoption - structural constraints on courts developing the law.

"I consider it therefore both fair and accurate to identify the precise question for this Court as this: who, on the acknowledged facts, is entitled to be registered as the mother of the first and second named applicants on their birth certificates, pursuant to the provisions of the Civil Registration Act 2004? That is in turn essentially a question of statutory interpretation."

"In my view however, on the narrow question of registration on birth raised in this case, the first named respondent is correct that the 2004 Act on true construction requires the registration of the birth mother and in doing so is not unconstitutional. I wish to make it as clear as is possible that this decision is limited to the question of immediate registration of birth: it should not be taken as deciding anything more."

Clarke J (dissenting): Motherhood - scope of appeal - evolution of the common law - common law in Ireland on motherhood - Status of Children Act 1987 - determination of parenthood - genetics.

"While it might well cause significant difficulties for the registration of children born as a result of the advances in reproductive science which are at the heart of this case, nonetheless it seems to me, at present, that a recognition that both a birth mother and a genetic mother are entitled to be registered in some way is the least bad solution. Pending any relevant legislation it seems to me to be a matter for an tArd Chláraitheoir to put in place such administrative measures as might be necessary to give effect to that type of registration."

McMenamin J: Nature of order in such an exceptional case - public interest and public policy aspect to case - analogies with adoption issues under legislation - blood and genetic link - invidious discrimination.

"The “mater semper” principle seeks to achieve certainty. Were it dis-applied what other criteria would be adopted in applying the legislation as it now stands? Would the principle be replaced in an individual case by genetic criteria which might, in fact, arise in the range of very variable circumstances described earlier, and where many couples who enter into surrogacy arrangements would not, in fact, come within the “genetic test”? Such a procedure would of course require DNA or blood evidence to be provided on each registration."

Murray J (concurring): Statutory interpretation - meaning of the word "mother" - role of Oireachtas in making laws - surrogacy - absence of legislation - s.19(1) of the Civil Registration Act, 2004 - "the required particulars of birth" - role of birth mother as opposed to biological or genetic mother

"The fact remains that the birth mother nurtures the foetus and child from the earliest beginnings of life to its birth in this world. As I observed in Roche v. Roche & Others “Of course the gestation and birth of a child is inextricably and humanly linked to the mother and its development in the womb.” While that statement was undoubtedly made in the context of a case where no surrogacy was involved, nonetheless the inextricable human empathy and nexus must, and does, exist between a woman and a child who has been brought to life and birth through her womb can hardly be denied as if she was a vessel of convenience. Because, for personal reasons and particular circumstances, including surrogacy, she willingly consents, after birth, to the welfare and custody of the child being transferred to a genetic mother, just as a mother may consent to have her child placed for adoption, cannot take away from that underlying reality."

"In this case, there is a manifest lacuna in the law. Surrogacy is neither authorised by law nor prohibited by law. It is for the Oireachtas to make the value judgement based on best policy, as other countries have had to do, as to whether, and if so, in what circumstances, assisted reproduction by means of surrogacy should be permitted."

McKechnie J (partially concurring): History of case - nature of surrogacy arrangement - mater semper - blood link - orders made in High Court - whether provisions of Status of Children Act 1987 applied to maternity in the same way as paternity where non-union existed between genetic and gestational mother - whether relationship between applicant and children gave rise to constitutionally protected rights - duty of state - registration of births - effect of registration of birth - legitimacy / declaration of parentage - “mater semper certa est, etiamsi vulgo conceperit, pater ver is est, quem nuptia demonstrant” (“the mother is always known, even if she conceived out of wedlock, whereas the father is he whom the marriage indicates”) - rights of "the natural mother" - rights of "the natural father" - right of child to equality before the law - blood link - unsatisfactory nature of outcome of case - declaration that genetic mother and children had rights that must be recognised and vindicated under Article 40.

"Finally, in several respects I find the outcome of this judgment unsatisfactory, in particular regarding the children. As the law is presently understood in this area the children, prior to the 1987 Act, may well be considered illegitimate. That is a most undesirable consequence of the circumstances in which the legal situation rests, as of now. Furthermore, even with the abolition of illegitimacy, it is by no means certain that the children together with Mr. R. and Mrs. R. constitute a family under the Constitution. If that be correct, which I am not called upon to definitively say, then the protection afforded by virtue of Articles 41 and 42 thereof is denied to them. This would be a highly undesirable state of affairs which results from a situation where scientific and medical advances have far outpaced the use of existing legal practices and mechanisms. A comprehensive response is urgently required: which response at the level required, is not possible from a judicial point of view. Intervention therefore by the Oireachtas is essential. For the above reasons, I will allow the appeal but would make a declaration that Mrs. R. and the children have rights which must be recognised and vindicated under Article 40 of the Constitution, in such a way which reflects, the fundamental relationship between them."