Supreme Court reserves judgment in surrogacy case

A seven judge Supreme Court has reserved judgment on the State's appeal against a decision that the genetic parents of twins born to a surrogate are entitled to be registered on their birth certificates as their legal parents.

In closing arguments for the State today, Michael McDowell SC said its fundamental position is that a child’s legal mother is the person who gives birth to them and that a child cannot, as a matter of public law, have two mothers at the same time.

If the court agrees with the State and rejects the finding that motherhood is legally decided on the basis of genetic links, it will be far easier to protect the position of surrogates, he argued.

The legal definition of motherhood is central to the appeal which ran for almost four days before concluding today. The Chief Justice, Ms Justice Susan Denham, said it raised very important matters and the court would reserve judgment to a later date.

The State wants to overturn the May 2006 High Court order of Mr Justice Henry Abbott in which he defined maternity as based on genetic or blood links and ruled the genetic parents were entitled to be registered as the legal parents of the twins.

It also argues the position of the genetic parents and twins will be addressed in forthcoming legislation and that it is open to the genetic parents to adopt the twins.

The twins were born to a sister of the genetic mother who, due to a disability, is unable to carry a pregnancy herself. The arrangement between the surrogate and genetic parents was described as a gesture of love by the surrogate.

The genetic parents took the case after the Registrar of Births refused to register the genetic mother as the legal mother of the twins on their birth certificates. The surrogate was registered as the twins mother while the genetic father was registered as their legal father.

Today, Gerry Durcan SC, for the twins and genetic parents, said he was handing into the court a summary of those parts of the High Court decision with which he agreed and aspects of it with which he disagreed. His side agreed with the High Court decision but not with all of the reasoning adopted.

Counsel has contended his clients position can be addressed by the issuing of a declaration under the 1987 Status of Children Act declaring the genetic parents to be the legal parents of the twins.

That declaration would be binding on the Registrar, it was submitted.

Ross Aylward BL, for the surrogate, said she does not consider herself to be the mother of the twins and is supporting the genetic parents position.

In his closing submissions, Mr McDowell said none of the parties had claimed the Constitution defines maternity for all purposes and the High Court had erred in finding maternity was dependent on a genetic link between a woman and child.

The anti-abortion provision in the Constitution, Article 40.3.3, makes clear that, during pregnancy, the pregnant woman is regarded as the mother of the child, he added.

It was open to the law to transfer parentage from one person to another by a process of public law but it was not open to the law to simply extinguish the natural rights of the birth mother by stating she was not the mother. The legal position should not be decided on the basis of the first sympathetic case to come before the courts, he argued.

A different case could arrive and all sympathy could run another way, he said.

He disagreed the genetic parents were entitled to a declaration under the 1987 Status of Children Act that they are the legal parents of the twins. The 1987 Act was never intended to be used for such a purpose, he submitted.

A child born to a surrogate and provided to others cannot be regarded as part of a constitutional family, counsel also argued.