The Irish Government yesterday announced that the judgement of Mr Henry Abbott in the recent surrogacy case is being appealed to the Supreme Court to clarify what they describe as, ‘a number of points of law of exceptional public importance.’
According to the Government statement, which is set out fully below, the judgement 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.
The statement crucially states about the judgement ‘It may also have the effect of tying the hands of the Oireachtas in how it may legislate, in the future, for the complex areas of surrogacy and assisted human reproduction.’
Mr Justice Abbott ruled in favour of the genetic parents in this case, and rejected the customary principle, mater semper certa est, a principle that means that the mother who gives birth, is the legally recognized mother. In coming to this judgement Mr. Justice Henry Abbott recognized the validity of the DNA test for paternity and maternity.
When is DNA set down? It is set down on the completion of fertilization. In other words, Mr Justice Abbott in recognizing DNA as the basis for establishing parenthood has recognized, in effect, that on fertilization the individual human being comes into existence.
This judgement has major implications for the current Government proposals to legislate for the introduction of abortion, leaving it with no option but to appeal to the Supreme Court because of its potential to scupper the proposed legislation
Either way the Government is in a difficult position, on the one hand there will be anger and disappointment at the decision, by families who wish to register children, born using surrogate mothers, as their own, then there is the potential of the judgement to scupper the Government's pro-abortion legislation. On the other hand if the appeal is successful then the use of DNA evidence in court will be called into question with the possible consequences that most of the rape case judgements, murder cases judgements, robbery and sundry other judgements –– going back for as long as the DNA test has been in use –, would have to be declared unsound, and all the criminals involved would have to be released immediately – an appalling vista.
The Government may now have no option but to defer the enactment of their pro-abortion legislation until after the Supreme Court rules on this issue, which we understand is to be fast tracked.
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
While extremely mindful of the family at the centre of this case, the Government has agreed that the above judgement should be appealed by the Registrar General to the Supreme Court to clarify a number of points of law of exceptional public importance.
The judgement 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. It may also have the effect of tying the hands of the Oireachtas in how it may legislate, in the future, for the complex areas of surrogacy and assisted human reproduction.
The appeal is therefore considered necessary both to bring certainty to this vital area of law and to ensure that the legislature's scope to legislate is absolutely clear. Such clarity is especially important because the Government is committed to legislating to address the wider issues surrounding assisted human reproduction, including surrogacy. Legislation is currently being prepared with a view to being brought to Government later this year.
Department of Social Protection 6th June 2013