State’s message on surrogacy: ‘Leave it to the Oireachtas’

What is motherhood? That,
in effect, is the question the seven-judge Supreme Court
is being asked to answer
in the State's appeal against
a landmark High Court decision on surrogacy.

For the State, whose case was opened by Michael McDowell SC yesterday, the decision by Mr Justice Henry Abbott last year was "radically wrong" and raises huge questions about parentage and the ability of the Oireachtas to legislate in this fraught and complex area.

The State's position is encapsulated in the Latin maxim mater semper certa est, or "motherhood is always certain". As a matter of public law, McDowell argued, "it is very clear that the woman who gives birth to a child is by definition the mother of the child." He said the High Court had in effect "reversed the meaning of motherhood", amending public law in a
way that strayed far beyond
its remit.

Rapid-fire questions
McDowell 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.

They were keen to know what the Constitution had to say about motherhood. The document doesn’t set out to define it, McDowell replied. Indeed, as at least three members of the bench pointed out, it appears to offer some flexibility. Article 40.3.3 – which recognises the equal right to life of the unborn and the mother – clearly implies that the mother is the woman who gives birth.

But elsewhere, in allowing for adoption, the Constitution also allows for the status of mother to be transferred
from one person to another. That would suggest motherhood is certain at birth, but
that it can then shift in certain circumstances.

Science
The judges also wanted to talk about science as a force behind evolving attitudes and behaviour. Motherhood might have always been certain in the past, a number of judges suggested, but medical and scientific advances surely made it less
so today.

Agreed, says the State; mater semper certa est never envisaged "what would happen in the petri dish". But it's not simply a matter of keeping up with science; there are public policy choices to be made.

Moreover, said McDowell, instituting a new legal regime to take account of scientific change is not a job for
the courts nor for private individuals by way of a personal agreement between them. Rather, it's a task that falls to the Oireachtas.

"If someone else is to become the mother it cannot be by a private contract – it must be
by way of a legal process," McDowell told the court.

Counsel for the State came to court armed with freshly printed copies of the Government’s proposals to legislate for non-commercial surrogacy, which were published just last week in the general scheme of the Children and Family Relationships Bill.

At first the judges couldn't quite see why the State had produced the scheme of the Bill in court (or "pulled it out of
the hat", as Mr Justice
John Murray put it), but the unspoken message was clear: "Leave this to the Oireachtas. We're on it."

There are policy reasons for the State’s insistence on guarding legislators’ patch on surrogacy. Under the High Court’s ruling, McDowell argued, genetic parents would always be the parents, whereas the Government’s plans include specific safeguards and restrictions. For one, consent must be given by the carrier or birth mother after delivery. It would also be an offence to pay a woman a fee to carry a child, and very young women would be banned from acting as surrogates altogether.

“We are not dealing in every case of surrogacy with such a happy situation,” McDowell said, referring to the case that came before the High Court.

For the State, this isn’t merely about registration documents. The High Court’s ruling would have knock-on effects in areas such as citizenship, succession and criminal law. It would also raise “stark” questions about the status of a great many women who “think they are mothers” after giving birth to children using eggs donated by other women.