Irish News

Saturday 26 July 2014

Genetic parents reject Government claims about definition of a mother

Dearbhail McDonald Legal Editor

Published 31/01/2013|13:33

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THE genetic parents of twin girls born to a surrogate have rejected the Government's claim that a birth mother is the only type of mother under Irish law.

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The married couple with whom the twins live would face substantial legal hurdles and "unprecedented" litigation if they tried to adopt the young sisters, the High Court has been told.

The Government bases it claims on the 1983 right-to-life amendment and the Supreme Court's ruling in the frozen embryo case.

In the closing stages of the landmark surrogacy action, a married couple who are the genetic parents of twins born to a surrogate - the wife's sister - have insisted that the 1983 abortion amendment was "limited" and designed to prevent termination of pregnancy.

The groundbreaking case concluded this morning and judgment will be delivered at a later date.

The case is expected to be appealed to the Supreme Court by the losing side, owing to the significant legal issues raised.

Senior Counsel Gerard Durcan, for the genetic parents, said that the 1983 abortion referendum, which gave rise to the 1992 X case, did not define or address the rights of parentage after birth.

He said the genetic parents insist they are not seeking a "radical" overhaul of Ireland's parentage laws.

Mr Durcan said that the powers of the Oireachtas would be "fettered" if the Attorney General was correct to say that the birth mother is the only mother for the purposes of Irish law.

The couple, who cannot be identified by court order, were present in court today with the wife's sister who supports their bid to be registered as parents on the twins' birth certificates.

Mr Durcan told High Court Judge Mr Justice Henry Abbott that Article 40.3.3 of the Constitution - the right-to-life provision - refers only to the gestational mother during the "temporal period" from implantation to birth and does not address "wider issues".

Mr Durcan said that Article 40.3.3 does not define, "for all purposes" the meaning or status of a mother.

The hands of the Oireachtas would be tied in circumstances where the fettering of lawmakers’ discretion was not required by the right-to-life provision or the Supreme Court's interpretation of that provision in the so-called frozen embryo case, added Mr Durcan.

The Attorney General has insisted that the birth mother is the only mother for the purposes of Irish law because of the Latin maxim "mater semper certa est" or "motherhood is always certain".

And the State has told the High Court that the right-to-life amendment makes it "absolutely clear" that the mother of a child is the pregnant woman who gives birth to it.

But Mr Durcan said that scientific advances including blood, DNA and genetic inheritance tests had brought us to a point where fatherhood is certain but uncertainty has "entered into the picture" in respect of motherhood.

"Maxims are fine when they reflect reality," said Mr Durcan, who told Judge Abott that the scientific reality has undermined the certainty that the woman who gives birth is the mother.

"Certainty is now achievable in a number of different ways," said Mr Durcan who said that the twins were entitled to have their rights vindicated even if the circumstances of their birth were "unusual".

The Attorney General said yesterday that the married couple - who want to be registered as the parents of the twins on their birth certificates- had not yet explored other avenues including adoption.

The genetic father has not yet applied to be a guardian of the twins.

But Mr Durcan said that even if the father was appointed guardian of the twins, difficulties in respect of child custody and abduction laws could arise if, for example, the couple moved abroad.

Mr Durcan said that it was "probably not possible" for the genetic parents to adopt the twins as the surrogate aunt was married at the time she gave birth to the twin girls.

As the law requires married parents to "abandon" their children before being placed for adoption, this was an "insurmountable obstacle" for the genetic parents to overcome, Mr Durcan told Judge Abbott.

The surrogate aunt was judicially separated at the time she gave birth but married for the purposes of adoption law.

It would have to be proved that the surrogate aunt, who the State says is the mother of the twins, had abandoned the children before the twins could be placed for adoption by their genetic parents.

The State said that the surrogate's former husband was not registered as father of the twins.

Mr Durcan said that the genetic parents would be facing litigation without precedent if they tried to adopt the twins, just as they are facing litigation without precedent in their surrogacy case, adding that there would not necessarily be a "slam dunk" if the genetic parents tried to adopt the twin girls.

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