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Ireland: Genetic mother wins surrogacy case

11 March 2013
Appeared 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.

10 November 2014 - by Antony Starza-Allen 
The Supreme Court of Ireland has ruled that the genetic mother of twins born to a surrogate cannot be included as the children's mother on their birth certificates, saying that it is for the Irish Parliament to legislate in this area.....
6 October 2014 - by Fiona Duffy 
Why does the Children and Family Relationships Bill 2014, published in Ireland on 25 September 2014, contain no provision for surrogacy?...
10 February 2014 - by Fiona Duffy 
Despite the lack of legislation and a regulatory framework in assisted conception, fertility treatment has been widely available in Ireland for many years. But in the absence of legislation, fertility clinics will not provide surrogacy services and many Irish couples requiring the use of a surrogate have, as a result, gone abroad...
10 February 2014 - by Ayesha Ahmad 
The Irish Supreme Court has heard an appeal over surrogacy parenthood, reserving its decision for a later date....
3 February 2014 - by Antony Starza-Allen 
The Irish Government has agreed to put forward proposals for a wide-ranging bill that features provisions on surrogacy and parenthood for consultation...
4 February 2013 - by James Brooks 
The French Justice Minister's instruction to courts to accept citizenship applications for children born via surrogates in other countries has unleashed a political and popular furore...
28 January 2013 - by Nina Chohan 
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...
5 March 2012 - by James Brooks 
The Court of Appeal in Rennes, France, has upheld an earlier decision to accord civil status – similar to nationality – to twins carried by a surrogate mother in India for a French couple...
21 November 2011 - by Antony Starza-Allen 
An advisor to the Irish Government on child protection has expressed his 'profound concern' that failing to legislate in the area of assisted reproductive technologies (ART) may result in children's rights being violated....
6 December 2010 - by Antony Starza-Allen 
Northern Ireland's High Court of Justice has rejected a claim for damages brought by two children born as a result of IVF treatment provided to their mother which resulted in them being of different skin colour than intended...
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