Who is the mother? A discussion on the desperate call for surrogacy legislation in Ireland
This letter was due to be published on 20th January 2015. However, due to unforeseen technical difficulties COLR were unable to publish the letter at that time. In the meantime the Government has agreed to prepare new laws to regulate surrogacy and the broader area of assisted human reproduction and associated research, and bring to an end the legal uncertainty in which these services currently operate including the areas of surrogacy and stem cell research.
Annie Nevala is a final year BCL (International) Student at University College Cork. In this letter, she explores the recent developments in the Supreme Court in area of assisted reproduction in Ireland. To access the fully referenced copy of this please click here.
Despite the increased awareness of the use of surrogacy internationally and domestically, the concept currently remains entirely unregulated in Ireland. No form of assisted human reproduction is presently recognised in the Irish Statue Books, although reform in the area of donor-conception is on the way.
This has created a framework where the courts increasingly find themselves teasing out the complexities of new reproductive technologies without any legislative guidance. The recent Supreme Court decision of MR and DR v An t-Ard-Chláraitheoir  IESC 60 (MR) is a clear example of the current legal lacuna surrounding surrogacy in Ireland and demonstrates the desperate need for statutory direction on the issue.
In a six to one majority the State won its appeal against the landmark High Court ruling that the genetic mother of twins born to a surrogate mother was entitled to be registered as their legal mother on their birth-certificates. The case centred on twins born through the use of genetic material from their parents to a surrogate who was the sister of the genetic mother.
Issues arose when the Registrar of Births registered the genetic father as the legal father but refused to register the genetic mother as the legal mother on the basis of the maxim mater semper certa est – the mother is always certain. This age-old Roman law principle dates back to the pre-IVF era where it was presumed that the mother who gave birth to her child was both the legal and the genetic mother. The genetic parents successfully challenged this position in the High Court, where Justice Abbott ruled that the genetic mother was also the twin’s legal mother.
On appeal to the Supreme Court Chief Justice Denham noted that following in the slip stream of modern medical developments in assisted human reproduction, other States have passed legislation to govern and regulate the area but that no such statutory development has yet occurred in Ireland.
Since Ireland has failed to address issues arising from surrogacy the Chief Justice allowed the appeal and quashed the orders of the High Court. The core issue of the case was the registration of a ‘mother’ under the Civil Registration Act 2004 and whether the genetic or the surrogate mother should be named as the legal mother on the twin’s birth-certificate.
The Chief Justice noted that there is no definition of a ‘mother’ in the Irish Constitution. The only two references afforded to the ‘mother’ fall within Article 40.3.3° and Article 41.2.2° which deals with the right to life of the unborn child and the protection of mothers in the home.
Despite the fact that Chief Justice Denham refused to recognise that mater semper certa est is or have ever been part of Irish common law, the Chief Justice indicated that the current legal lacuna surrounding surrogacy gave her no other choice but to allow the appeal. She stated that the issues raised in the case are important, complex and social, which are matters of public policy for the Oireachtas and that the current lacuna in the law should be addressed in legislation and not by the Court.
In separate judgments, Justice Murray, Justice Hardiman, Justice O’Donnell, Justice McKechnie and Justice MacMenamim agreed that the appeal should be allowed while Justice Clarke dissented.
In a country where unmarried fathers have no automatic guardianship rights to their children and where genetic mothers cannot be registered as their child’s legal mother unless physically giving birth to her child (or adopting her genetic child) – one may wonder what will come next. It took the Oireachtas over 20 years to pass legislation to address the legal developments that followed on from the X-case in 1992. It was only in light of the events that followed on from the tragic death of Savita Halappanavar in 2012 that the Irish lawmakers finally got down to action in putting a legislative framework in place.
Surrogacy is not a new phenomenon. IVF-treatment has helped thousands of couples across the globe that cannot reproduce children on their own since the mid 1980’s. The mother in MR was facing a potential childless life, was it not for the option of surrogacy. The State’s failure to recognise the reality of modern-day families and provide equal legal rights to genetic mothers as to genetic fathers creates a serious question of whether the State is properly vindicating the rights of the genetic mother.
As a response to MR, Minister for Health Leo Varadkar issued a press release stating that legislation on assisted human reproduction, surrogacy and gamete donation was long overdue in Ireland. Minister Varadkar claimed that he intended to bring a memorandum for an Assisted Reproduction Bill to Government by the end of 2014, which would be likely to deal with the issue of legal parentage, surrogacy, egg and sperm donation, and other related issues.
Surrogacy was initially included in the extensive Children and Family Relationships Bill 2014, which was introduced in late January 2014. However, due to the pending Supreme Court decision of MR, Frances Fitzgerald (Minister for Justice and Equality) removed surrogacy altogether from the Bill in September 2014.
Ms Fitzgerald felt that there were critical issues that needed to be resolved and that more policy work and consultation was required on the issue. Although surrogacy was removed from the 2014 Bill, assisted human reproduction remained.
Even though the 2014 Bill is welcomed in terms of acknowledging assisted human reproduction, surrogacy has remained in a legal limbo. In a state where lawmakers traditionally have adopted a reactive approach to legal developments, one may only hope that the strong comments from Chief Justice Denham in MR will give the legislature the push it needs to put surrogacy down in writing.
As for the statements made by Mr Varadkar, these have remained merely promises so far. Ireland is still waiting on further legislative developments regarding a potential Assisted Reproduction Bill. It is however hoped that the legislative changes necessary will occur without needless delay.
Is mise le meas,