The recent landmark High Court judgement in the case of R -v- An tArd Chlaraitheoir has highlighted the necessity for legislation to be introduced to regulate the area of surrogacy in Ireland.
In this case, the genetic parents of twins born to a surrogate mother challenged the State’s refusal to allow the genetic mother to be named on the children’s birth certificates. In a groundbreaking decision, the High Court ruled in favour of the couple in holding that the biological mother of the children should be recognised as the legal mother and was therefore entitled to have her name on their birth certificates.
The decision of the High Court represents a departure from the prevailing legal framework that has been applied to surrogacy arrangements in the State. A clear statement of this legal framework is set out in Guidelines issued in 2012 by the Department of Justice. These guidelines were intended to “promote the principles that will be applied by the Irish authorities when considering (1) whether a child is an Irish citizen and (2) who the child’s legal parents and guardians are for the purpose of dealing with applications for travel documents on behalf of children born outside of the State as a result of surrogacy arrangements”.
The Guidelines were, therefore, specifically issued for the purpose of providing guidance to couples engaging in international surrogacy arrangements. However, in the absence of specific legislation in this area, the Guidelines represent a synopsis of the prevailing law in Ireland affecting surrogacy arrangements. They outline that surrogacy contracts are unenforceable in Ireland, providing that “under Irish law, family relationships and the rights and responsibilities that flow from them cannot be subjected to the ordinary law of contract and cannot, in particular, be transferred to another person, bought, or sold. This means that under Irish law, the surrogate mother and the child will have a lifelong relationship with one another”.
In relation to the issue of legal parentage, the Guidelines state that “the fact that a genetic relationship exists between a commissioning adult and the child does not mean that he or she is automatically the legal parent of the child under Irish law”. The Guidelines provide that the surrogate mother is considered to be the legal mother of the child even in circumstances where the ovum from which the child was produced was provided by one of the commissioning adults or by a donor. Furthermore, the mother of a child born outside of marriage is deemed to be the child’s sole guardian.
The High Court case
It appears that the position adopted in the Department of Justice Guidelines may be subject to consideration following the recent High Court judgement. In this case, the applicants (OR and CR) challenged the refusal of the State to record CR’s name on the birth certificates of their children (twins) who were born to a surrogate mother (CR’s sister) in circumstances where CR was the genetic mother of the children. In doing so, the applicants sought a number of declarations from the Court, including a declaration that CR was the mother of the children pursuant to the relevant provisions of the Status of Children Act 1987, or otherwise pursuant to the inherent jurisdiction of the High Court; and a declaration that the State’s failure to recognise and acknowledge CR and OR as parents of the children was unlawful and failed to vindicate and protect the constitutional rights of the applicants. The central legal issue, then, as identified by the Court was who, in law, was entitled to be treated as the parents of the children and to carry out the duties and the functions that emanate from that status, and in particular, who, in law was to be treated as the mother of the children.
Following the birth of the children, OR (the commissioning father) and CR’s sister (the surrogate mother) were registered as the parents of the children. Subsequently, OR and CR made an application to the Superintendent Registrar for Dublin seeking the correction of the register to record CR as the mother on the children’s birth certificates on the basis that she was the genetic mother of the twins. This application was refused. During the course of the hearing, the High Court heard evidence from the Chief Officer of the system of civil registration in Ireland (An tArd Chlaraitheoir), who explained that this refusal by his office was based on the principle of mater semper certa est, or motherhood is certain, and that his office had received legal advice that this was the correct principle to be followed.
The common law principle of mater semper certa est formed the basis of the arguments advanced in this case on behalf of the State respondents. They argued that this principle was affirmed in the Irish Constitution in Article 40.3.3, which provides that “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws defend and vindicate that right.”
The respondents argued that this provision of the Constitution makes it clear that the mother of a child is the woman who gives birth to the child. Therefore, they argued that “it is an inherent and fundamental principle of our law and as a constitutional norm, that a mother is a pregnant woman who gives birth to a child and there is no other basis for motherhood other than that as a matter of constitutional jurisprudence”.
It was the State respondents’ case that the purpose of the Status of Children Act 1987 was to declare parentage in cases where there was confusion as to the identity of the birth mother, and the provisions of that Act could not be used by a genetic mother to assert parentage as this was not within the remit of the constitutional definition of the term “mother”. In order for the 1987 Act to be interpreted in a constitutional manner, therefore, the respondents argued that all references to the word “mother” in that Act must be taken as meaning “birth mother”.
In terms of the emphasis placed by the applicants on the importance of the “blood link” between parents and their children, the respondents argued that this special relationship is not solely based on genetics, but also and more importantly, on the physical connection between a woman and the child she carries and gives birth to. The respondents argued that for the State to allow CR to be registered as the mother would be to overturn a constitutional principle that the birth mother is the mother. Such an approach would, warned the respondents, create uncertainty for a range of persons, including those persons who have borne children by way of donor gametes.
In advancing their argument that CR should be recognised as the legal mother of the twins, the applicants focused on the significance of the blood link between children and parents and in particular, between a mother and child. The applicants submitted that whilst it is obviously the case that a gestational mother would afford protection to a child, the natural relationship that exists between a mother and a child is the territory of the blood link. They further submitted that the basis of this blood link was “pure genetics”.
The applicants sought a declaration that CR was the mother of the children pursuant to Section 35 of the Status of Children Act 1987, or otherwise pursuant to the inherent jurisdiction of the Court. Under Section 35(1) of the 1987 Act, a child can obtain a declaration that a person is their father or mother, and blood tests may used to determine parentage in this regard. The applicants, therefore, argued that the legislature envisaged that “the presence or absence of inheritable characteristics is the test in regard to parentage, whether it is fatherhood or motherhood for all children”. They submitted that this was the mechanism put into place by the Oireachtas for determining the issue of parentage and that furthermore, the Oireachtas had decided that parentage would be determined in this way “regardless of how the child was born, whether they were born due to an IVF procedure or whether they were born in a normal conventional birth”. The applicants therefore argued that the principle of mater semper certa est “cannot survive and does not continue in any sense after the Status of Children Act when the legislature put in place a regime based on the presence or absence of inheritable characteristics”.
Having heard the arguments advanced by both sides, Mr Justice Abbott granted a declaration that the genetic mother in this case was the mother of the twins in law. In doing so, he considered the question of whether the presumption embodied in the maxim, mater semper certa est, could be rebutted. He said that prior to surrogacy arrangements, the possibility of the rebuttal of the principle of mater semper certa est did not arise. The question was whether, in the circumstances of this case of surrogacy, such a possibility arises within the current legal and constitutional framework of this jurisdiction. In considering this issue, the Judge rejected the arguments advanced by the State in relation to the interpretation of Article 40.3.3 to the effect that this provision interpreted the birth mother as being the legal mother. On this point, the judge stated his opinion that the word “mother” as used in that Article related to the existence of the unborn and applied when the foetus was in the womb and not otherwise.
Regarding the status of the gestational (or birth) mother, the judge stated that “while the input of a gestational mother to an embryo and foetus not containing genetic material from her is to be respected and treated with care, the predominant determinism of the genetic material in the cells of the foetus permits a fair comparison with the law and standards for the determination of paternity”. Following on from this, the judge posited that to achieve fairness and constitutional and natural justice, both for the paternal and maternal genetic parents, the inquiry in relation to maternity should be made on the basis of genetics.
As part of the concluding portion of his judgement, Mr Justice Abbott highlighted the fact that the situation in this jurisdiction is one where “positive legislation on the area of surrogacy is totally absent”, which he said meant that the surrogacy contract in this case was not illegal.
The judgement in this case, therefore, must be viewed in the context of the legislative void in this area. Whilst the outcome was clearly positive for the applicants, the implications of the judicial determination that parenthood under Irish law is to be based on genetics may be far reaching in the area of both surrogacy and, on a broader level, assisted reproduction. In the wake of this judgement, legislative clarity in this area is eagerly awaited.