The 1983 abortion amendment to the Constitution made it "absolutely clear" that the mother of a child is the pregnant woman who gave birth to the child, a High Court case on surrogacy and motherhood was told this morning.
Mary O'Toole SC, counsel for the State, said the common law principle mater semper certa est - motherhood is always certain - was imported into the Constitution in 1983 via Article 40.3.3.
She said the legislature could allow for the transfer of maternal rights but the mother must always be the birth mother.
"There is no other basis for motherhood," she said.
Ms O’Toole 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 Justice Henry Abbott suggested that Art 40.3.3 did not set out to define motherhood. “Whatever else was debated during that referendum, this wasn’t part of the debate,” he said.
Ms O’Toole said it nevertheless had defined motherhood. This was an “unavoidable and inescapable premise” the court had to follow.
She also argued that genetic connections alone between children and their parents had not been given “huge significance” in case law and did not give a “presumptive right” to genetic fathers to have guardianship of their children.
The judge also asked counsel if there was legislation in train to deal with the matter. Ms O'Toole said it was in the programme for government, but Mr Justice Abbott said this was only of "theoretical comfort".
