TWINS born under a surrogacy arrangement have a constitutional right to have the links to their genetic parents recognised and protected, the Supreme Court has heard in a landmark surrogacy appeal.
A full seven-judge court led by Chief Justice Susan Denham has also been told that motherhood can no longer be determined on the basis of giving birth, but must be decided according to inheritable characteristics.
The court was hearing submissions on behalf of genetic parents whose twins were born to a surrogate – the genetic mother's sister, who gave birth to the twins as "an act of love".
The Supreme Court is hearing an appeal brought by the State over a High Court decision last May that the genetic parents were entitled to be registered as the twins' parents on their birth certificates.
Yesterday, the judges were told by Gerard Durcan SC, for the family, that motherhood and fatherhood were determined according to "inheritable characteristics" or a "blood link" to a child.
The law in Ireland since 1987, when the Status of Children Act was introduced, is that a declaration of parenthood can be issued on the basis of "inheritable" characteristics and that means the genetic parents of twins born to a surrogate were entitled to a declaration that they were the children's legal parents, Mr Durcan said.
Any such declaration would be binding on both the Registrar of Births and the State and would require the twins' birth certificates to be amended to identify the genetic parents as their legal parents.
As of now, their birth certificates state that the surrogate is their mother and their father is the genetic father.
The current state of Irish law means any woman who has given birth to a child using donated eggs is not, as of now, the legal mother of that child, said Mr Durcan.
The twins were born some years ago to a surrogate, a sister of the genetic mother. The surrogate agreed to be implanted with fertilised genetic material from her sister and the sister's husband as an act of love because her sister, as a result of a disability, was unable to carry a child herself.
In its appeal, the State contends that the mother of a child is the woman who gives birth.
In his submissions yesterday on the second day of the appeal, Mr Durcan said he was seeking a declaration under the 1987 Act that the genetic parents were the twins' legal parents.
That Act required, before such a declaration could be issued, that the blood link between a child and a parent be determined. There was no dispute in this case that his clients were the genetic parents.
During the High Court hearing, the Registrar of Births had indicated that his office's general practice was not to look behind such declarations but to alter birth certificates in accordance with them, counsel indicated.
The international trend is that the ultimate deciding factor for determining a child's parentage was the presence or absence of genetic links, Mr Durcan said. The position now is that both motherhood and fatherhood can be established on the basis of genetic testing as matters of "absolute certainty".
Mr Durcan also argued the Constitution does not expressly define who are considered to be the parents of a child and said that question was left to the law. The anti-abortion provision in Article 40.3.3 of the Constitution did not mean that a woman who gives birth to a child must be treated as that child's lawful mother, he submitted. The appeal continues.