A genetic mother ("CR") has been declared the legal mother of twins born to a surrogate mother in a significant case at the High Court. By arrangement with her sister, "CR" provided ova, fertilised by sperm provided by the husband of the genetic mother, "OR". As a result of that fertilisation, which took place in vitro, the twins, "MR" and "DR" were created.
Mr. Justice Henry Abbott in the High Court ruled that the "CR" was the legal mother and that she was entitled to have her name on the birth certificates. Until now, only the women who gave birth can be registered as the mother.
The couple had sought to challenge the refusal of the State to allow the genetic mother to be listed as the mother on the birth certificates.
The surrogate, sister of "CR", did not object to the couple’s application.
Mr. Justice Abbott said the input of the birth mother was to be respected and treated with "care and prudence". But 'the mother is always certain' (maxim mater semper certa est) principle, which the state argued meant the birth mother was always the legal mother, did not survive the enactment of the Constitution, "as it applies to the situation of in-vitro fertilisation".
"To achieve fairness and constitutional and natural justice for both the paternal and maternal genetic parents, the feasible inquiry in relation to maternity ought to be made on a genetic basis and on being proven, the genetic mother should be registered as the mother," Mr. Justice Abbott said.
Mr. Justice Abbott also ruled that the word "mother" in Article 40.3.3 of the Constitution had a meaning "specific to the article itself". This was related to the existence of the unborn only when the foetus was in the womb and not otherwise.
The state argued that Article 40.3.3 had defined motherhood as the birth mother only.
Mr. Justice Abbott noted that positive legislation in Ireland on surrogacy was "totally absent" and so the contract entered into by the couple and the surrogate mother was "not illegal". But he said its performance in the Irish legislative context "would not be enforceable by any court".
View: Guidance Document 2012 (Justice)
