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It is tragic that children suffer over our failure to respond to facts of life

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Solicitors Marion Campbell and George Gill speaking to the media outside the High Court yesterday. Photo: Courtpix

Solicitors Marion Campbell and George Gill speaking to the media outside the High Court yesterday. Photo: Courtpix

Solicitors Marion Campbell and George Gill speaking to the media outside the High Court yesterday. Photo: Courtpix

IN time, the "landmark" surrogacy Supreme Court appeal will be seen as an important restatement of the doctrine of the separation of powers, with something or other to do with surrogacy.

Students of the law will read seven eloquent judgments, cementing in their minds the cardinal rule that only the Oireachtas has the exclusive power to make laws. And they will probably weep in despair when they discover that successive Irish Governments abandoned that duty.

It is a gross dereliction of duty that has left a generation of children born through assisted human reproduction (AHR) suspended in "a legal half-world" where they are incapable of being regarded as part of a constitutional family.

Children, like the six-year-old twins born to a surrogate who cannot, in law, call their genetic mother "mammy". Twins who can only call her mammy if she throws herself at the mercy of the Adoption Authority and asks to adopt the children who bear her DNA.

Even then she will have to ask her sister, who acted as a surrogate for her "as a gesture of love", to prove that she has "abandoned" the children she [the surrogate] gave birth to on her behalf.

Not for this mammy the power to make decisions when her children are ill, to take them out of school early or get them a passport to bring her family abroad.

Not for this mammy the power to have a legal relationship with her twins if her husband - the girls' genetic father - dies before they reach 18.

Why? Because she is not their mammy. Why? Because of a refusal by Irish society to come to terms with sex, reproduction and alternative family forms. Why? Because lawmakers have refused to make laws regulating IVF and surrogacy, practices that have thrived in the absence of, or perhaps in spite of, any regulation.

We regulate, to the nth degree, the genetic and birth history of livestock - of cows and horses and sheep - for the sake of public health and the common good. We can trace each morsel of food from farm to fork.

But we are happy to allow children to live in a legal twilight zone for fear of stripping the proverbial paint off de Valera's now unsettling, if over-romanticised, version of happy maidens dancing at the maypole.

The best little country that gave the state nod to illegal and forced adoptions is only too happy to allow many children born through AHR to live in a vacuum, where they may not know their parentage and cannot fully express it even when they do.

The best little country whose constitution purports to protect and cherish each child equally, has created a two-tier system that allows children of married and unmarried parents to be treated entirely differently because of the exalted status of the family based on marriage to the exclusion of all other family forms.

It is a country where unmarried fathers have no automatic rights to their children and where genetic mothers - but not genetic fathers - are unable to be legally declared a child's mother unless they have physically given birth.

It is a mess: maybe we should lay claim to the title to be the best little country to ignore sexual relations and social change. Yesterday, judge after judge, led by the Chief Justice Susan Denham, was at pains to stress that the complex issues that arose in the surrogacy case were "quintessentially" for the legislature, not for the courts.

You can't quarrel with that logic. Nor can you quarrel with the Supreme Court's criticism of the failure to legislate in the face of rapid advances in science and, by extension, ethics.

Depressingly, we've been here time and time again, caught in the vicious, endless circle of judges who can't legislate and politicians who won't.

The late Supreme Court Judge Niall McCarthy, for example, berated the Government in the X case over its then "inexcusable" failure to introduce appropriate laws with regard to abortion.

That was in 1992: the State eventually passed laws last year, 30 years after the so-called right-to-life referendum, and only then after it was dragged kicking and screaming into the European Court of Human Rights and facing down public anger in the wake of the death of Savita Halappanavar.

All roads lead to 1983: four years ago the Supreme Court issued a warning to the Government to act to resolve issues surrounding AHR in the frozen embryo case, that action itself arising over our failure to clarify the status of the unborn.

And yesterday the Supreme Court, in those measured words that judges use, expressed its enduring regret that the warnings in the frozen embryo case went unheeded before the surrogacy action landed at its door.

The six to one majority "win" for the State is no victory: it is an abject failure of politics and policy making - and there's more to come.

For all its refusal to cross the constitutional line, the Supreme Court warned of many potholes ahead.

Though the State may take some comfort in the near landslide ruling in its favour, it is the dissenting judgment of Mr Justice Frank Clarke that it ignores at its peril. As any first year law student will tell you, it is often the minority report that ultimately has the most significance and so I believe it will be with this dissent..

Judge Clarke, who expressed the view that there is scope for permitting the proper evolution of the common law to meet new scientific circumstances, has fired a subtle warning shot of sorts to the Oireachtas and not just in relation to AHR.

Addressing the constitutional position of the family, he notes that the European Convention on Human Rights recognises a broader range of units as being properly regarded as family.

"It may well be said that one of the greatest changes in social conditions in Ireland over the last quarter of a century has been a radical alteration in what might ordinarily be understood by mainstream opinion as constituting a family," said Judge Clarke, who said that the definition of "marriage" in a constitutional context may have to be reconsidered in light of the fact that we have legal divorce.

Months away from the same-sex marriage referendum, Judge Clarke said that while the constitutional statement that the family based on marriage remains, the precise definition of "family" is a matter which may need to be looked at again in an appropriate case.

This, it seems to me, is a veiled - if judicious - warning that if politicians do not act, the judiciary may have to in order to vindicate people's rights.

The social and political choices ahead are not easy ones.

It will be tragic, however, to make children suffer because we, as adults - through our public representatives - do not respond in a humane way to some very basic, if rapidly changing facts of life.

Irish Independent