Thursday 29 January 2015

Supreme Court to hear landmark appeal over surrogacy rights

Published 23/01/2014 | 18:45

A SEVEN-judge Supreme Court will hear a landmark appeal next month concerning the rights of all those involved when children are born under surrogacy arrangements.

A SEVEN-judge Supreme Court will hear a landmark appeal next month concerning the rights of all those involved when children are born under surrogacy arrangements.

The appeal will be heard on February 3 but, before it opens, the court will decide whether members of the media will be permitted to attend and report on the hearing.

Arising from the introduction of new laws permitting the reporting of some childcare and family law cases in cetrain circumstances, it will be up to any party who objects to the media reporting to set out reasons why the media should be excluded.

The appeal has been brought by the State against a High Court decision that a genetic mother of twins born to a surrogate - the mother's sister - could be named as the legal mother on the birth certificate of her children.

Last November, the Irish Human Rights Commission and Equality Authority secured permission from the court to make arguments in the appeal.

Among the issues the Commission wants to address are the personal rights, including to identity, of children born to surrogates while the Authority believes it can be of assistance arising from its work on broader surrogacy rights issues.

The Authority had never previously sought to be joined to a Supreme Court appeal as an "amicus curiae" - assistant to the court on legal issues.

Its counsel, Nuala Butler, told the Supreme Court last November the Authority's interest arose from its historic involvement in surrogacy issues and it wished to be of assistance in helping resolve those.

There was "a lack of reality" to the State's concern no issues shoud be canvassed related to the Equal Status Act on grounds they were not issues in the High Court, counsel said. The Authority was anxious to put this matter in a context and it should not be precluded from even making reference to "the bigger picture".

Nuala Egan, for the Commission, said it wanted to address human rights issues under the Constitution as informed by international human rights instruments and to make arguments concerning the personal rights of the children, especially in relation to their identity. The Commission was joined as an amicus in three previous cases.

Mary O'Toole SC, for the State, said it appeared the Autority wanted to raise issues as to whether the Registrar of Births engaged in prohibited conduct in refusing to register the genetic mother as the twins' mother.  Those, and other matters, while they might be interesting, had not arisen in the High Court, she said.

There was also no discussion in the High Court of children's rights in the context of rights arising from the European Convention, counsel added.

It semed both bodies would be "partisan" in the appeal, as they were entitled to be, and would adopt the position the genetic parents should be registered as the parents of the children, counsel noted.

Counsel for the parents indicated they were not objecting to the bodies being joined as long as that did not delay the "very urgent"

appeal while counsel for the surrogate mother said she was neutral on the application.

The Supreme Court agreed to join the Commission and Authority as "amici curiae" but stressed they must confine their submissions to the issues raised in the High Court and Supreme Court appeal.

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