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.
The twins were conceived using the intended mother's eggs and her husband's sperm, but were born to the genetic mother's sister who was acting as a surrogate for the couple. It was intended that the children would be brought up by their genetic parents but after the birth, the registrar refused to amend the birth certificates to include the intended and genetic mother, despite the birth mother consenting to the alteration.
The couple challenged this decision and the High Court ruled against the Government (reported in BioNews 696), saying that the genetic mother could be named as the legal parent by birth registration. The court emphasised both the genetic connection between mother and child, as well as the parties' intentions.
The Government appealed the decision, arguing that under Irish law the birth mother is always considered to be the legal mother, unless there has been adoption. Michael McDowell SC emphasised in the Supreme Court that surrogacy and parenthood are issues for the Irish Parliament, the Oireachtas, and that a ruling on this matter could cause difficulties if it then decided to legislate. He also said such a ruling could have implications for women using egg donors who might end up not being recognised as the legal mothers of their own children.
Gerard Durcan SC for the family countered that birth mothers would still have legal rights until a declaration of parentage was made, and that most donations are made anonymously anyhow. He also argued that the appropriate test for parentage is DNA testing, as it is for paternity testing, and that children have a constitutional right to have their genetic parents recognised in law.
The Supreme Court chose to allow the Government's appeal by a 6-1 majority. In her judgment, Chief Justice Susan Denham said that there was no common law or legislation in place to determine the issue, but that it was not for the court to address this 'lacuna in the law'.
She indicated there was nothing in the Irish constitution to prevent Parliament from legislating in this area. 'The issues raised in this case are important, complex and social, which are matters of public policy for the Oireachtas,' she ruled.
Justice Minister Frances Fitzgerald, who recently announced that surrogacy provisions had been dropped from draft legislation, said: 'I am very sympathetic to the truly human circumstances at the heart of this case.'
'The State had to appeal this case as it would have overturned our existing law and jurisprudence which sets the birth mother as a child's mother and because it would have fettered the Oireachtas in terms of what provisions it could make by law in those areas in the future.'
She added that she 'welcomed' the Supreme Court's indication that is was for Parliament to legislate for surrogacy, however. 'I note that the Supreme Court has said that it should be a priority for the Government to legislate for surrogacy and to provide for families such as that in this case.'
'My colleague, Minister for Health Leo Varadkar TD, will be bringing proposals to Government before the end of the year,' she said.
Varadkar pledged to push for legislation to deal with legal parentage, surrogacy, egg and sperm donation. 'Legislation on assisted human reproduction, surrogacy and gamete donation is long overdue. I intend to bring a memorandum for an Assisted Reproduction Bill to Government by year's end,' he said.
Commenting on the ruling, Fiona Duffy at Patrick F O'Reilly & Co. Solicitors, Dublin told BioNews: 'The Supreme Court has left the Government in no doubt but that the complex social, ethical and legal issues relating to assisted human reproduction and surrogacy must be dealt with by the Oireachtas and that it is not for the courts to make laws.'
'This has finally provoked a positive response from the Minister for Health to take over where his counterpart in Justice, who recently threw the question of surrogacy to touch, left off,' she added. 'Happily he will not do it alone... Finally some joined-up thinking and action.'