Genetic mother told she can't be named on children's birth certs
Published 25/01/2013 | 05:00
THE genetic parents of two young children born to a surrogate were told that they could not have the name of the mother "corrected" on the birth certificates.
A letter from the Register of Births, Deaths and Marriages denied that the name of the mother on the certificate was an error, informing the couple of the legal principle that "motherhood is always certain".
In a landmark legal action under way at the High Court, evidence was given by Registrar General Kieran Feely who presides over births, deaths, marriages, still-births and adoptions in Ireland.
The case involves a couple who want the birth certs of their children amended to name the genetic mother rather than the woman who bore them.
The surrogate mother is supporting the couple's application, which was refused by the office of Registrar General in 2011.
The application is also opposed by the Attorney General.
The identity of the parties is strictly protected by order of Mr Justice Henry Abbott, who is presiding over the case and evidence given by the parties themselves cannot be reported on.
Mr Feely told the court that on an unstated date, the father and birth mother of the children had arrived to register the births at the registry office, explaining the circumstances to the registrar.
The registrar then contacted the office of the Registrar General who advised that the woman who gave birth to the children be registered as the mother. Asked as to whether this was his first surrogacy query, Mr Feely replied: "It is certainly rare."
This was the "first or second" case he had ever come across with the two cases happening "pretty simultaneously", he revealed.
In 2010, Mr Feely received a letter from solicitors acting for the genetic parents, claiming the woman registered as the mother was not correct and asking that this be corrected.
Supporting documentation was sent to his inquiry, including DNA evidence and a letter from the IVF clinic involved, describing briefly what had transpired and explaining that the genetic mother was different to the woman recorded as having given birth.
The removal of the name of parents from the register is a matter of such "fundamental importance" that Mr Feely had carried out a personal inquiry.
He came to the conclusion that he did not have the power to make a correction to the register. In a letter to the solicitors of the genetic parents on June 14, 2011, he said it could not be treated as an "error of fact" since "the person who gave birth was the mother", saying he had to apply the principle: "mater semper certa est" – translated as "motherhood is always certain".
He told the solicitors that he was sorry he did not have "better news to convey to your clients".
Asked by his counsel Mary O'Toole why he had taken the view that there was no error of fact, Mr Feely said he had independent evidence that the woman named on the birth cert had given birth to the children.
Mr Feely said the benefit of the current system was its simplicity and certainty.
If an inquiry into the genetics of the mother came into it, it would create "an enormous amount of uncertainty" and involve considerable expense, he said.
DNA tests cost around €500 to €1,000, he said, revealing that his office already receives DNA tests "in some hundreds" every year relating to cases of the removal of fathers' names from the register.
With around 75,000 births taking place in Ireland each year, he did not see how it could be "practical to have 75,000 tests done," he said.
"The way I see it, motherhood is a legal fact. Paternity is a rebuttable presumption," Mr Feely told the court.
The case continues next week.