Registrar powerless to remove name

The chief registrar of births, deaths and marriages in Ireland has told the High Court he did not have the power to remove the name of a surrogate mother from the birth registration details of two children after a request from the children’s genetic parents.

Kieran Feely said he had followed the rule of "mater semper certa est" - motherhood is always certain – when deciding on whether the name of the genetic or the surrogate mother of the children should be entered on the register.

Mr Feely was giving evidence this afternoon in a landmark case challenging the refusal of the State to allow the genetic mother of two small children born to a surrogate mother to be listed as the children's mother on their birth certificates.

Reporting on the family law case, which would normally be heard in private, has been partially approved because of the importance of the issues involved.

Mr Feely said the details of the birth had been sent to the registrar by the hospital where the children had been born, naming the surrogate mother as the mother.

The parents had attended at their local registrar's office and had requested that the genetic mother be registered as the children's mother. When details of the circumstances became clear, the registrar contacted Mr Feely for advice on how to handle the issue.

"My office advised the woman who gave birth should be registered as the mother of the children," he said.

He told Mary O'Toole SC, for the State, when he was appointed to his position in 2004 he was made aware the way to deal with the question of surrogacy was to register the birth mother as mother.

Asked by Mr Justice Henry Abbott whether this was the first surrogacy case he'd come across he said he had only come across two such situations, including the current case, and both had occurred around the same time.

Mr Feely told the court a superintendent registrar received a letter from a solicitor for the genetic parents in 2010 seeking to correct an error on the register. It stated the woman who was registered as the mother was not correct. As chief registrar, Mr feely investigated the matter under Section 65 of the Civil Registration Act 2004. He received a statutory declaration from the parents, DNA evidence and a letter from the IVF clinic involved "describing what had transpired".

"The net effect of that was to tell me that the genetic mother was different to the mother who had given birth," he said.

He said after legal advice, he concluded he did not have the power to change the mother's name as he could not treat the surrogate mother's entry on the register as "an error of fact". The surrogate mother had given birth to the child.

He wrote to the couple's solicitor in June 2011 to tell them his decision.

The case continues.