State argues surrogate is ‘legal mother’ of twins

A surrogate who gave birth to twins using genetic material from another woman must be regarded under public law as the mother of those children, the State has argued before the Supreme Court.

The State's position is that a woman who gives birth to a child is the mother of that child, that motherhood involves pregnancy and that motherhood cannot in law be based on genetics, Michael McDowell SC said.

It would be of “grave public concern”, with radical consequences, including for citizenship, succession and the criminal law, if the Supreme Court rules that the woman who donated the genetic material to the surrogate must be registered as the mother of the children, he said.

Any change to that position is a matter for the Oireachtas, not the courts, he argued. A contractual arrangement between the surrogate and couple in this case, under which the surrogate agreed to the couple being registered as the birth parents, could not override the existing public law unless the Oireachtas put in place a scheme allowing such agreements to be effected.

New laws dealing with assisted reproduction and surrogacy are intended to address some of the matters, including protection of surrogates and the would be parents, he added. These would permit couples who make arrangements to have children with a surrogate to be recognised as the parents of the children after birth, he noted.

Mr McDowell also noted that the attitude of the people to these issues is “a moving target” and there was no public consensus in that regard.

Counsel was opening an appeal by the State to the seven judge Supreme Court against a High Court decision that the genetic parents of the twins born to a surrogate are entitled to be registered as the birth parents of the children on their birth certificates.

If the High Court is correct, that means that a woman who gives birth to a child by using donated eggs cannot be registered as the mother of that child, he noted.

The children were born in recent years to a surrogate, a sister of the genetic mother, who has consented to the couple being registered as the birth parents.

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

Today, Mr McDowell said the High Court had no jurisdiction to reverse the meaning of motherhood. The woman who gives birth to a child is defined in public law as the mother of that child and that definition of mother is also implicit in the two references to mothers in the Constitution, he said.

The High Court was wrong to conclude the public law meaning of mother did not survive the enactment of the Constitution in 1937, he said. The State’s position was that, both before and after the Constitution, the legal definition of mother is the woman who gives birth to a child.

If the High Court is right that the genetic mother is the mother in public law, that meant the only mother is the genetic mother and meant, for instance, that a woman who gives birth to a child using donated eggs is not the mother. That would mean every woman in that position is wrongly registered as mother on her children’s birth certificate, he said.

Earlier, the court ruled, given the changes to the law relaxing the ban on reporting of family law cases, the media may report the case strictly on the basis nothing may be reported that might tend to identify the parties. The court has also prohibited reporting of the case via social media and imposed certain other restrictions on the timing of reports.

The appeal continues.