A surrogate who gave birth to twin girls because their genetic mother could not do so is the children's mother as a matter of law, the High Court has heard.
In a landmark legal action that has raised issues never considered by the courts, the Government insists that a married couple who arranged for the wife's sister to act as surrogate for their children can not be recognised as the twins' parents.
The ova produced by the genetic mother was fertilised by sperm from the father and implanted in the surrogate mother who then gave birth and supports the genetic parents bid to be recognised as the parents on the girls' birth certs.
The married couple claim that the State's refusal to recognise them as the twin's parents is unlawful and in breach of their constitutional rights.
But the State is defending the case on the basis that the genetic parents cannot be recognised as the parents because of the "invariable and irrefutable rule" that the gestational mother – the woman that gives birth – is and must always be treated as the mother of the child.
Expert geneticists have travelled to Ireland to testify in the action which is expected to be appealed to the Supreme Court by the losing parties.
The family law division of the High Court has heard that the children are seeking declarations, under the Status of Children Act, that their genetic mother is their mother, and that she is entitled to be registered as their mother and have the register of births corrected to reflect their true parentage. They want the court to order the Registrar General to correct the register of births to reflect this.
They are also seeking a declaration that the continued failure to recognise the father and genetic mother of the children is unlawful.
In the alternative, they seek a declaration that the father and genetic mother are the children's guardians.
Senior Counsel Gerry Durcan, acting on behalf of the children, in his opening of the case before Mr Justice Henry Abbott, said the legal issues raised in the case won't be easy to resolve.
The surrogate mother is supporting the couple's application, which was refused by the office of Registrar in 2011, on the ground that there is no legal basis to change the name of the mother on the birth cert from the surrogate mother to the genetic mothers.
More details of the case emerged yesterday following the release to designated media of redacted transcripts of the opening days of the hearing, before Mr Justice Henry Abbott.
Following an application by the Irish Independent, 'Sunday Times' and 'Irish Times' Newspapers, Mr Justice Abbott allowed restricted reporting of the case by designated media.
The restrictions include that direct evidence given by the parties taking the case cannot be reported on.
There is also a prohibition on contemporaneous reporting of the proceedings on social media, such as Twitter. The restrictions were imposed in order to protect the identity and privacy of the parties taking the landmark action.
The case continues.