THE 1983 abortion referendum makes it "absolutely clear" that the mother of a child is the woman who gives birth to it, the Government has told the High Court.
The Attorney General has insisted that the birth mother is the only mother for the purposes of Irish law. The assertion was made in the closing stages of a landmark action involving a married couple who are the genetic parents of twin girls born to a surrogate.
The genetic parents are seeking to have their children's birth certificates amended to name the genetic mother instead of her sister, who was the surrogate who gave birth to them.
Senior counsel Mary O'Toole, for Attorney General Maire Whelan, said that the definition of the mother was set out in the Constitution following the 1983 abortion referendum.
And the court also heard the Government was "unlikely" to introduce surrogacy laws in the very near future because of plans to legislate for the X Case.
Lawyers have told the High Court that the need to introduce abortion laws in line with the X Case has delayed proposals to regulate assisted human reproduction (AHR).
The Minister for Justice is working on the Family Relationships and Children Bill to address the issue, the court heard. But it is expected to be late 2014 before real legislative progress is made. The office of the AG was pressed by Ireland's most senior family law judge about whether the State intended to legislate for surrogacy. This is included in the FG-Labour Programme for Government.
"Is there a serious prospect of legislation?" asked Mr Justice Henry Abbott, who heard that the birth mother of the twins was by rights entitled to custody of the twins, who are living with their genetic parents.
Mr Justice Abbott also said the self-evident presumption of motherhood had been "rattled" by scientific advances, including DNA technology.
"The only certainty is who bears the child," said the judge.
The State said it would not hinder any attempt by the genetic father to apply to be a legal guardian of the twins.
Ms O'Toole said that science had got us to a point where the role of the mother could be 'split' in the laboratory.
But she argued that this did not remove the basic premise that the mother who gives birth to the child is the mother as a right of law and public law.