When the people voted for the 1983 abortion amendment to the Constitution they were not addressing the wider issue of who a mother is, the High Court was told this morning.
Rebutting arguments made by the State that the amendment defined motherhood as the birth mother only, Gerard Durcan SC said the amendment was intended to be applied to the period while a woman carried a child and did not apply after birth.
He said the Supreme Court had ruled, in a case involving the right to life of a frozen embryo, that the amendment did not apply to embryos before they were implanted in a woman.
The Supreme Court had emphasised that Article 40.3.3 had “limited purpose and limited effect”.
It had also recognised that invitro-fertilisation was “probably not contemplated at the time”.
Just as it didn’t apply to a period prior to implantation, it did not apply to a period after birth, Mr Durcan said. To say it had a wider effect would “entirely to ignore the basis of the logic of the Supreme Court”.
He 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.
The applicants 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 twins.
At present, the surrogate mother, their aunt, is their legal parent. She is the sister of the genetic mother in the case, and is not objecting to the couple’s application.
Mr Durcan also told Mr Justice Henry Abbott that the State’s suggestion that the couple could adopt the twins would not necessarily result in “a slam dunk”.
Because the surrogate mother was married at the time of the twins’ birth, she could not voluntarily put the children up for adoption under current law.
The other mechanism was to adopt on the basis the children had been abandoned by their parents, but this would also be difficult to prove since the genetic father was also the father on the birth register and so was the parent.
“It would be much more difficult to say he has [abandoned the twins] in the circumstances,” Mr Durcan said.
The case has concluded and the judge is expected to give his verdict next month.
