An Irish couple has brought a legal challenge against the State for refusing to remove the surrogate mother from their children's birth certificates and to register the genetic mother as a legal parent. The Irish media has been given exceptional leave to report on the ongoing proceedings on the grounds that it raises matters of public interest around the status of children born to surrogates.
The children were born through a surrogacy arrangement using the woman's eggs, but the surrogate mother was registered on the birth certificates. The chief registrar of births, deaths and marriages, Kieran Feely, refused the couple's subsequent request to amend the birth certificates, however, saying he did not have the power to remove the surrogate mother's name.
Feely told the High Court that he was asked for advice on how to deal with the couple's request by a local registrar. In giving evidence to court, he said: 'My office advised that the woman who gave birth should be registered as the mother of the children'.
The court heard that a lawyer for the couple then wrote to Feely stating the person listed as the mother on the children's birth certificates was not correct, requesting it to be changed and replaced with the genetic mother. Despite providing DNA evidence of genetic parentage, a letter from the IVF clinic detailing the surrogacy arrangement and having the full support of the surrogate mother herself, the couple's application to amend the birth certificates was denied.
Feely explained that he could not regard the record as factually incorrect, relying on the principle that 'motherhood is always certain'. He further stated that 'the legal mother is the mother who gave birth to the children so there was no legal basis for me to make the correction'.He also said that if enquiries into the genetic status of the mother were relevant to legal parenthood, this could generate uncertainty and high costs - it would not be 'practical' to perform a genetic test for every one of Ireland's 75,000 annual births. 'The way I see it, motherhood is a legal fact. Paternity is a rebuttable presumption', the Irish Independent reported Mr Feely as saying.
As the law currently stands in Ireland, the birth mother is listed as the mother on the child's birth certificate. In guidance issued last year, the Department of Justice and Equality reiterated that the birth mother is considered to be the legal mother of the child. 'It is important to be aware that the fact that a genetic relationship exists between a commissioning adult and the child does not mean that he or she is automatically the legal parent of the child under Irish law', it says.
The Minister for Justice, Alan Shatter, at the time said he would consider legislative reform of the country's laws on surrogacy. The Irish Independent reported that similar suggestions were made several years ago but had not been taken up.
The law in the UK permits amendments to be made to birth certificates of children conceived through surrogacy arrangements. The surrogate initially registers the birth with her name appearing on the birth certificate. However, if a parental order is granted conferring legal parenthood to the intended parents, a new certificate is issued.
Feely told the court that these cases were 'very rare' in Ireland and this was the 'first or second' case he had ever come across. The case continues.