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Irish Government to appeal landmark surrogacy ruling

10 June 2013
Appeared in BioNews 708

The Irish Government is to appeal a recent court ruling that allowed the genetic mother of twins born to a surrogate to be listed as their legal mother on their birth certificates. The Department of Social Protection said the appeal is needed to 'clarify a number of points of law of exceptional public importance'.

A High Court judge ruled last March that a woman whose eggs were used to fertilise embryos with her husband's sperm was the legal mother of twins born to her sister, who had agreed to act as a surrogate (reported in BioNews 696). After the birth, the authorities had refused to alter the birth certificates, which listed the birth mother as the children's legal mother, prompting the parents to seek the help of the High Court.

The Government contended that the Irish Constitution defines the birth mother as the 'mother' and that the maxim 'motherhood is always certain' should be applied. The couple countered that the law did not expressly define who the legal mother is and that the increased use of assisted reproductive technologies (ART), when the genetic and gestational mother may not be the same person, required the court to determine who is the legal parent or mother.

Mr Justice Henry Abbott disagreed with the Government, saying the maxim related to the existence of the unborn child only when the fetus was in the womb and that, to the contrary, many previous family law cases had prioritised the 'blood link'. He concluded that the genetic mother in this case could be named as the legal parent due to her genetic contribution and her intention to raise the children.

In its statement of appeal, the Irish Government said: 'The judgment raises important questions about how motherhood may be determined under Irish law and has potentially very serious consequences which could, by linking motherhood exclusively to genetic connection, affect a potentially large number of families'.

This is the first of such cases to arise in the Irish courts. Ireland has to date had a comparatively low uptake of ART and a corresponding lack of laws detailing the use of such procedures. The appeal statement also voiced a concern that the High Court ruling could present challenges to the Irish Parliament, the Oireachtas, if it decides to legislate in this area.

The couple's solicitor, Marion Campbell, told the Irish Times that she has been contacted by many other people seeking legal parentage for children born to surrogate mothers.

Landmark surrogacy case to be appealed
Irish Times |  6 June 2013
Statement in relation to High Court judgement in the case of MR, DR, OR and CR v An tÁrd Chlaraitheoir [Registrar General], Ireland & the Attorney General
Department of Social Protection (Ireland) |  6 June 2013
State to challenge landmark surrogacy ruling
RTE News |  6 June 2013
Supreme Court to fast-track case as State appeals surrogacy ruling
Irish Independent |  7 June 2013
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?...
29 September 2014 - by Antony Starza-Allen 
The Irish Government has removed provisions on surrogacy from draft legislation reforming family law in the country, while including proposals to prohibit anonymous sperm and egg donation....
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....
11 March 2013 - by Ruth Retassie 
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....
11 March 2013 - by Dr Kirsty Horsey 
Once upon a time, motherhood was certain. It was proved by giving birth. The Latin maxim 'mater semper certa est' that told us so was irrefutable. Whether or not that was ever actually true, it has for a long while been biologically, as well as socially, questionable....
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...
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....
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