Sunday 25 February 2018

Surrogacy appeal to Supreme Court underway

A SURROGATE who gave birth to twins using genetic material of a couple must remain registered as the mother of those children on their birth certificates, it was argued in the Supreme Court today.

If not, there will be "massive" and "radical" consequences, Michael McDowell SC, for the State, said.

The State's position is that a woman who gives birth to a child is the mother of that child, motherhood as a matter of fact and common sense involves pregnancy and it cannot in law be based on genetics,  he said.

Mr McDowell was opening the State's appeal before a seven-judge Supreme Court against a High Court decision last May that the genetic parents are entitled to be registered as the twins parents on their birth certificates. The twins were born to a surrogate, a sister of the genetic mother, some years ago.

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.

The High Court had no jurisdiction to reverse the meaning of motherhood and was "radically wrong" in finding motherhood was based on genetics.

If the genetic parents succeed, it would "put in complete doubt" the position of many women who now think they are mothers after giving birth to children themselves using eggs donated by other women.

New laws being introduced by the Oireachtas will address the position of the couple but it is up to the State, not the courts, to legislate for the issues surrounding assisted reproduction and surrogacy, he said.

Any change to the existing law must be effected by a positive law enacted by the Oireachtas with regard to the constitutional rights of all affected.

The High Court wrongly found the State unlawfully discriminated between the genetic parents by permitting the genetic father to be registered on the twins birth certificate as their father but refusing to permit the genetic mother be registered as their legal mother, he said.

Maternity and paternity are different and the distinction between them is justified on grounds including the principle that maternity, unlike paternity, is always certain, counsel argued. Pregnancy had two elements, fertilisation and conception, and the fact the State recognised maternity as based on giving birth did not breach the constitutional guarantee of equality.

While scientific possibilities had changed, the law had not moved with them and any change now should be left to the Oireachtas. As of now, the State's position was a child "cannot have two mothers at the same time", counsel submitted.

The fact that the genetic parents and the surrogate had agreed the genetic parents should be registered as the legal parents of the twins on their birth certificates did not alter the situation as such an agreement could not be allowed alter the public law status of a mother or determine how family law relationships should be decided.

The appeal,, which is expected to last three days, addresses a range of complex issues relating to the rights of all involved when children are born as a result of surrogacy arrangements. The Equality Authority and Irish Human Rights Commission will be making submissions in the appeal.

In exchanges today, Mr Justice Donal O'Donnell told Mr McDowell the State seemed to the making the case that, as of now, the genetic mother has no rights or status in law.

Mr McDowell said it is constitutionally permissible for the genetic mother to be regarded as having no legal rights. If she  was registered as the twins mother, the register of their births would turn out to be conditional and a mother's status provisional.

The new laws being introduced would permit couples who make arrangements to have children with a surrogate to be recognised as the parents of the children after birth, he noted.

The attitude of the Irish people to these issues is "a moving target" and there was no public consensus, he said. Some countries do not permit surrogacy arrangements, he added.

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