Dearbhail McDonald: Real issue is failure of lawmakers to do their job
IT is a strange sight seeing six men and one woman, the Chief Justice Susan Denham and her Supreme Court colleagues, debating the essence of motherhood in the landmark surrogacy appeal.
Strange because science, for now at any rate, dictates that only women can experience pregnancy.
It is also strange to see the State argue that only the Oireachtas, as a matter of public policy and law, can decide who is a mother.
Strange because the Government has allowed surrogacy to flourish – by not regulating the practice in law, or even banning commercial surrogacy as many of our European neighbours do.
The State has argued that if motherhood is to be redefined, it is for our parliament to do so.
But the failure of politicians to act to regulate surrogacy, one way or another, is a major issue in the appeal.
Former justice minister and attorney general Michael McDowell SC was representing the Government in the appeal against a High Court ruling that the genetic mother of twins born to a surrogate is the twins' mother. He conceded that the State had not responded to certain developments in the area of reproductive law.
"Ireland did not rush to say this (surrogacy) must stop," said Mr McDowell.
"You have to make public law choices," he added, accepting that science does not always wait for the law to be updated.
Mr McDowell said it would be a matter of "grave public concern" with consequences for citizenship, succession and the criminal law, if the Supreme Court does not overturn the High Court decision.
But the full constitutional court is probing the consequences of scientific possibilities that have challenged the old Latin maxim Mater Certa Semper Est – that motherhood is always certain.
That presumption that the birth mother is the only mother recognised in law has been challenged by a host of developments including adoption, in-vitro fertilisation and surrogacy.
The State is correct to say that the making of laws is the exclusive preserve of the Oireachtas.
But without such laws, cases such as this will continue to come before our courts.
The appeal continues.