Sunday 15 December 2019

It's a tale of two sisters in the mother of all legal battles

Irish women spend only half the amount of time in hospital as others in the EU after giving birth
Irish women spend only half the amount of time in hospital as others in the EU after giving birth

Lise Hand

THE Supreme Court has a churchy feel, with its wood-panelled walls, pew-like seats, overhanging balcony and hushed congregation. When history happens here, it unfolds quietly, swaddled in legal language and formal procedures, and at a remove from the human dilemma which first sparked the pilgrimage through the justice system.

And so it was yesterday morning. The courtroom was full by the time Chief Justice Susan Denham and six of her colleagues filed in to give their judgments on a ground-breaking surrogacy case.

The family at the centre of the case were seated side-by-side at the back of the court. Among the group were three smartly dressed blonde women - two sisters and their mother. Their five-year journey to the highest court in the land began when one sister acted as a surrogate for her sibling, who was unable to bear children. The surrogacy produced twins, and all was well - until the family discovered that, in accordance with the current laws, the surrogate mother and not the genetic mother must be registered as the parent on the birth cert.

All too often, families and legal wrangles are a lethal mix; loyalties are torn asunder over a will, a bequest, a business deal, domestic violence, land.

But it was clear that this was a close-knit clan; one sibling going through a pregnancy and birth with no aim in mind except to bring happiness to a sister who longed for a child of her own. Then double joy arrived in the shape of twins, a ready-made family.

Then the messy, complex and infinitely varied reality which is human nature collided with the rigid implacability that is the law. And so Ireland's first female Chief Justice and six male judges were obliged to wrestle with the definition of motherhood. Womanhood and Bunreacht na hEireann have had a troubled relationship for decades now.

Surrounded by supporters and family, the two sisters listened intently. In one of their homes two small children who call one sister 'mummy' but it's their auntie's name inscribed on their birth certs.

It's been a gruelling journey for the sisters; last year the High Court found in their favour, ruling that the genetic mother could be named as the parent.

But that victory was fleeting - fearing the serious implications of such a judgment on any women using donated eggs, the State went to the Supreme Court.

A soft-spoken Susan Denham summarised her judgment. She pointed out that there was no "definitive definition" of 'mother' in the Constitution, but nor is there anything in the Constitution to prevent the development of laws on surrogacy.

She observed that surrogacy "creates complex relationships, and has a deep social content. It is, thus, quintessentially a matter for the Oireachtas".

As they listened to the Chief Justice overturn the High Court ruling, the family didn't react.

It must have been a wearisome process for them all - what began with the simple basic human desire of a woman to become a mother had turned into a ground-breaking legal case, one with massive implications for other women who turn to fertility clinics or a trusted female ally to fulfil an age-old instinct for motherhood.

The judges were faced with trying to redefine this fundamental concept of motherhood in a fast-changing world.

One judge, Mr Justice Frank Clarke, dissented. He wrestled with other solutions. He thought the "least bad solution" would be to register both women as mothers on the birth cert.

Afterwards, the family filed out of the courtroom, looking resigned but composed. Outside the Four Courts, solicitor Marion Campbell spoke on their behalf. "They are very disappointed," she said. "But they haven't given up hope. They're ever hopeful."

It's over to the Oireachtas now. This mother of all battles isn't over yet.

Irish Independent

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