Supreme Court hearing Surrogacy Case on Motherhood

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The Irish Supreme Court is currently hearing the appeal by the Irish State in the surrogacy case in which Mr. Justice Abbott ruled in favour of genetic parents, 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.

The Irish Times reports

A surrogate who gave birth to twins using genetic material of a couple must, as a matter of law, remain registered as the mother of those children on their birth certificates or there will be “massive” and “radical” consequences, the State has argued at the Supreme Court.

The State’s position is that a woman who gives birth to a child is the mother of that child; motherhood as a matter of fact and common sense involves pregnancy and it cannot in law be based on genetics, senior counsel Michael McDowell said.

It would be a matter of “grave public concern”, with consequences for citizenship, succession and the criminal law, if the Supreme Court does not overturn the High Court decision that the woman who donated the genetic material to the surrogate must be registered as the mother, he argued.

Michael McDowell SC spent much of the day batting rapid-fire questions from the judges, who interrupted him constantly and in the process revealed a consistent set of concerns about the State’s stance.  Photograph: Dara Mac Dónaill/The Irish TimesState’s message on surrogacy: ‘Leave it to the Oireachtas’

‘Complete doubt’

The High Court had no jurisdiction to reverse the meaning of motherhood and was “radically wrong” in finding motherhood was based on genetics. If the genetic parents succeed, it would “put in complete doubt” the position of many women who now think they are mothers after giving birth to children themselves using eggs donated by other women.

Laws being introduced by the Oireachtas will address the position of the couple but it is up to the State, not the courts, to legislate for the issues surrounding assisted reproduction and surrogacy, he said. Any change to the existing law must be effected by a positive law enacted by the Oireachtas with regard to the constitutional rights of all affected.

The High Court wrongly found the State unlawfully discriminated between the genetic parents by permitting the genetic father to be registered on the twins’ birth certificates as their father but refusing to permit the genetic mother be registered as their legal mother, he said.

Guarantee of equality

Maternity and paternity are different and the distinction is justified on grounds including the principle that maternity, unlike paternity, is always certain, counsel argued. Pregnancy had two elements, fertilisation and conception, and the fact the State recognised maternity as based on giving birth did not breach the constitutional guarantee of equality.

While scientific possibilities had changed, the law had not moved with them and any change should be left to the Oireachtas. As of now, the State’s position was that a child “cannot have two mothers at the same time”, counsel submitted.

Agreement

The fact the genetic parents and the surrogate had agreed the genetic parents should be registered as the legal parents of the twins on their birth certificates did not alter the situation, as such an agreement could not be allowed alter the public law status of a mother or determine how family law relationships should be decided, he said.

Mr McDowell was opening the State’s appeal to the Supreme Court against a High Court decision last May that the genetic parents were entitled to be registered as the twins’ parents on their certificates.

The twins were born to a surrogate, a sister of the genetic mother, some years ago.

The appeal addresses a range of complex issues relating to the rights of all involved when children are born as a result via surrogate. The Equality Authority and Irish Human Rights Commission will be making submissions in the appeal.

Legal rights

In exchanges yesterday, Mr Justice Donal O’Donnell told Mr McDowell the State seemed to be making the case that, as of now, the genetic mother has no rights or status in law.

Mr McDowell said it was constitutionally permissible for the genetic mother to be regarded as having no legal rights. If she was registered as the twins’ mother, the register of their births would turn out to be conditional and a mother’s status provisional.

Council of State to meet next Monday to discuss the 'Protection of Life in Pregnancy Bill 2013'

The Irish Times reports Thursday 25th July that President Michael D Higgins has announced he will convene a meeting of the Council of State to seek its advice on whether or not he should refer the Protection of Life During Pregnancy Bill 2013 to the Supreme Court to test its constitutionality.

According to the report a statement issued by Áras an Uachtaráin has confirmed that President Higgins will be invoking the powers available to him under Article 26 of the Constitution to convene the Council of State to reach a decision on referring a Bill.

The meeting will take place at Áras an Uachtaráin next Monday afternoon.

The Bill completed its passage through the Oireachtas on Tuesday, when the Seanad voted in favour of the legislation.

Article 26.1 states: “ The President, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bills is or are repugnant to this Constitution.”

If the President decides to refer the Bill it must be done within seven days of him receiving the Bill from the Oireachtas.

A total of 15 Bills have been referred since 1940. The last Bill referred to the Supreme Court was the Nursing Homes Bill in early 2005. The Bill proposed to prevent retrospective payments to residents of nursing homes and other institutions and was referred by then President Mary McAleese.

The Supreme Court ruled the Bill was repugnant to the Constitution.

Once a Bill is found to be in keeping with the Constitution after being referred under the Article 26 provision, the legislation can never be challenged on constitutional grounds again by a citizen in the courts.

The Council of State is comprised of the Taoiseach, Tánaiste, Chief Justice, President of the High Court, Ceann Comhairle, the two former presidents, the five former taoisigh, retired chief justices, as well as those named by Mr Higgins. They are: Michael Farrell, Deirdre Heenan, Catherine McGuinness, Gearóid Ó Tuathaigh, Ruairí McKiernan, Sally Mulready, and Gerard Quinn.