Tuesday 22 October 2019

Surrogate couple face 'hurdles' in adopting

Dearbhail McDonald Legal Editor

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.

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, which the media were allowed to partially report subject to reporting restrictions, has concluded 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.

Gerard Durcan, counsel 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.

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

The couple, who cannot be identified by court order, were present in court 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".

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.

The Attorney General said that the married couple – who want to be registered as the parents of the twins on their birth certificates – had not yet explored adoption.The genetic father has not yet applied to be guardian.

david quinn

Irish Independent

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