Failing to recognise the genetic mother of twins as their legal mother breaches the children’s right to be part of a family as defined by the Constitution, the High Court was told yesterday.
Senior counsel Gerard Durcan, acting for the genetic parents of the twins, said the children were entitled to the same protection as other children under the Constitution.
“The fact of their conception shouldn’t take that away from them,” he said.
Mr Durcan was making closing submissions in a landmark case challenging the refusal of the State to allow the genetic mother of twins born to a surrogate mother to be listed as the children’s mother on their birth certificates.
He has sought a declaration from the court on behalf of the twins and their genetic parents that the genetic parents are the legal parents of the two children.
At present, the surrogate mother, their aunt, is their legal parent, though the children live with the genetic parents. She is the sister of the genetic mother in the case, and is not objecting to the couple’s application. Mr Durcan said under the Status of Children Act 1987 a child was entitled to apply to the court for a declaration that an individual is his father or mother. It was clear from the Act that parentage was to be attributed “on the basis of the presence or absence of inheritable characteristics”.
Excluded as a parent
DNA tests showed the surrogate mother in this case was excluded as a parent of the twins “because there isn’t the necessary presence of inheritable characteristics”.
Failing to recognise the genetic mother as the legal mother also breached the twins’ constitutional right to be educated, protected and cared for by their parents and their right to the recognition and security that comes from being a legal family under the Constitution.
Mr Durcan also argued that the genetic mother’s right to equality under article 40.1 of the Constitution would be infringed because she would be discriminated against because of her inability to have children “in the normal way”.
Register of births
He said if a declaration was made stating the genetic parents were the legal parents, the chief registrar would have to put that information on the register of births. Mr Durcan suggested the court could also rule that in future there would be a presumption that the birth mother was the legal mother, but that presumption could be refuted, as it already can for fathers.
If the court felt it could not rule on the declaration, it should appoint the genetic parents as guardians, he said.
Mr Justice Henry Abbott responded that the guardianship option “wouldn’t be a bad second for the couple” but “the real difficulty” was other parents would have to come in and “plague the courts” for similar orders, “running up costs”.
The case continues.
