The Supreme Court has ruled, by a six to one majority, that the surrogate mother of twins, as the birth mother, is entitled to be registered as the legal mother on the birth certificates. The judgment overturns the High Court ruling by Mr. Justice Abbott in March 2013.
The issues arose from the radical developments in assisted reproduction and were issues for the legislature, not for the courts to address, observed Chief Justice Susan Denham.
The lacuna surrounding particular rights of children born through surrogacy merits the outstanding issues being left to the legislature:
Any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content.
In separate judgments, only Mr. Justice Frank Clarke dissented, while the remaining panel agreed the appeal should be allowed. However, Mr. Justice O'Donnell stressed his decision to allow the appeal was based on the fact that the Civil Registration Act 2004 requires the surrogate mother, as the birth mother, to be registered as the the mother on the respective birth certificates.
The case centers around twins born to a surrogate mother, using sperm and ovum from the genetic parents.
While the genetic father of the twins was registered on the birth certificates, the Registrar of Births refused to register the genetic mother because she was not the birth mother. The Registrar maintained that the surrogate mother must be registered on the birth certificates.
The core issue was the registration of a "mother" under the Civil Registration Act 2004, observed Chief Justice Denham. The Constitution does not provide for a definitive definition of "mother". Nor does the Constitution prevent the development of legislation on surrogacy.
The State relied on the status of the Latin legal maxim, mater semper certa est - the mother is always certain. However, Chief Justice Denham observed that the maxim is not part of Irish common law and the words merely recognise a fact that the woman who gives birth to a child is the mother of the child.
As it stands, neither Irish jurisprudence or existing legislation addresses the outstanding issues on surrogacy arrangements, Chief Justice Denham observed. Citing the lacuna in the law as being the basis for her decision, the appeal was allowed.
