11 March 2013
ByAppeared in BioNews 696
The Irish High Court has ruled in a landmark case that a woman who is the genetic mother of twins born through a surrogate can be recognised as the legal mother of the children. The ruling could allow for other children born of surrogacy arrangements to be entitled to have their genetic mothers registered on birth certificates in Ireland.
The woman's sister carried the twins as a surrogate following IVF treatment with embryos fertilised using the woman's egg and her husband's sperm. Once the twins were born, they lived with their genetic parents.
The genetic parents sought to have the twins' birth certificates corrected in 2010 to identify the genetic mother has the twins' legal mother. When a superintendent registrar refused to list the genetic mother on the birth certificates, she pursued legal action.
The Government argued that the Irish Constitution defines the birth mother as the 'mother' and that this could not be altered. It said that the maxim 'motherhood is always certain' applied in this case.
Mr Justice Henry Abbott disagreed, saying the definition related to the existence of the unborn child only when the fetus was in the womb. He declared that the twins, and the genetic mother, were entitled to having her named the legal mother on their birth certificates.
Mr Justice Abbott also said that the contract between the intended couple and the surrogate was 'not illegal' as there is no legislation in Ireland on surrogacy, but added that such a contract would not be enforceable.
The judge said he was also influenced by cases that have found the importance of 'blood relationships' in deciding parenthood and that epigenetics was 'not of such significance' to overcome the importance of DNA.
The Government has 21 days to appeal this decision to the Supreme Court, and this appears to be likely, according to the Irish Times.
The clinical director of the Merrion Fertility Clinic, Dr Mary Wingfield stated that a child born through a surrogate should be 'presumed to be that of the commissioning couple'.
As Marion Campbell, the solicitor on behalf of the biological parents, said: 'It has been a very long, hard and emotional time for them and they would like to express their thanks for the support shown to them by their family, friends and legal representatives'.
'It is to be hoped now that much needed legislation in relation to this whole difficult area of surrogacy will be brought in and that children born by way of surrogacy arrangements will have their rights enshrined in such legislation'.
The Iona Institute, a conservative Irish think tank, appealed to the Government to prohibit surrogacy. Ireland has no laws concerning assisted reproductive technologies including surrogacy and embryonic stem cell research. The Government has not adopted a 2005 report from the Commission on Assisted Human Reproduction suggesting that legislation should be created.
Meanwhile, the High Court has also ruled an Irish man as father and guardian of a two-year-old girl born through surrogacy in India using the man's sperm and an anonymous egg donor. The child was given an Irish passport.
The Department of Foreign Affairs required a declaration of parentage before an Irish passport could be given, which Mr Justice Abbott - presiding over this case also - was satisfied had been metthrough genetic tests. Mr Justice Abbott said it was in the best interests of the child to grant an order in the father's favour.