Thursday 23 November 2017

Seven-judge Supreme Court set date to rule on State's appeal against surrogate birth cert decision

Tim Healy

A seven-judge Supreme Court will rule by next October on the State's appeal against a decision that the genetic parents of twins born to a surrogate are entitled to be registered on their birth certificates as their legal parents.

The appeal was heard last February and was mentioned at the Supreme Court yesterday when Chief Justice Susan Denham said the judgment will be given on or before October 19.

The legal definition of motherhood is central to the appeal. 

The State wants to overturn the May 2013 High Court order of Mr Justice Henry Abbott in which he defined maternity as based on genetic or blood links and ruled the genetic parents were entitled to be registered as the legal parents of the twins.

The State contends the position of the genetic parents and twins will be addressed in forthcoming legislation and that it is open to the genetic parents to adopt the twins. These genetic parents and twins could also not be regarded as a constitutional family, it was argued.

The twins were born to a sister of the genetic mother who, due to a disability, is unable to carry a pregnancy herself.  The arrangement between the surrogate and genetic parents was described as a gesture of love by the surrogate.

The genetic parents took the case after the Registrar of Births refused to register the genetic mother as the legal mother of the twins on their birth certificates.  The surrogate was registered as the twins' mother while the genetic father was registered as their legal father.

In the appeal, the State argued a child's legal mother is the person who gives birth to them and that a child cannot, in law, have two mothers at the same time.

If the court agrees, it will be far easier to protect the position of surrogates, it was submitted by Michael McDowell SC, for the State.

Gerry Durcan SC, for the twins and genetic parents, said they agreed with the High Court decision but not with all of the reasoning adopted in reaching it.

The couple want a declaration under the 1987 Status of Children Act declaring the genetic parents to be the legal parents of the twins. That declaration would be binding on the Registrar and State, it was submitted.

Ross Aylward BL, for the surrogate, said she did not consider herself to be the mother of the twins and supported the genetic parents' position.

The Irish Human Rights Commission and Equality Authority also argued the genetic parents were entitled to a declaration they are the legal parents and argued legislation could address the issues arising from scientific advances in assisted reproduction.

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