By Alice Lanigan, Solicitor, Litigation Department
Together with other national leading experts Alice recently lectured on the Law Society of Ireland’s Diploma Programme for the Certificate in Healthcare Law and Practice. Alice lectured on the topic of medical ethics and the law.
The absence of regulation in relation to surrogacy has recently come to the fore in Ireland via the case of MR & Ors –v-An t-Ard Chlaraitheoir, Ireland and the Attorney General.
Judgment was given on the 5th March 2013 by Abbott J, where he determined that surrogacy contracts were not illegal in Ireland and that because blood testing was permitted under the Status of Children Act 1987 to ascertain motherhood, there was a legal mechanism to change the register.
The commissioning parents of a surrogate child were applying for a declaration that they, as the genetic parents of twins born to a surrogate, were the legal parents of the twins. They made their application pursuant to the Status of Children Act 1987 and the Guardianship of Infants Act 1964. The surrogate mother is the aunt of the children and is a sister of the genetic mother. She did not object to the couple’s application. The surrogate was registered as the mother when the children were born, through notification by the hospital to the registrar. The Chief Registrar subsequently refused an application by the commissioning mother to change the register to have her registered as the children’s mother, as he said he did not have the power to do so. In his evidence to the court, he stated that the principle of mater simper certa est (motherhood is always certain) was the basis of registration of births in Ireland.
The applicants were applying for, inter alia, a declaration under Section 35 (8) (b) of the Status of Children Act 1987, that the commissioning mother was the mother of the twins born to the surrogate mother and a declaration that she was entitled to be registered as the mother of the twins and to have the register corrected. Their application was opposed by the Chief Registrar/the State, most particularly on the basis that mater simper certa est (motherhood is always certain) was the basis of registration of births in Ireland and had been imported into the Constitution via Article 40.3.3.
Abbott J identified the central legal issue to be addressed: Who, in law, is entitled to be treated as the parents of the twins and to carry out the duties, and to exercise the functions which follow from that status. In particular, who, in law, is to be treated as the mother of the twins.
Counsel for the applicants relied on the “blood link” between parent and child and referred to the Status of Children Act 1987 which he argued stated that the attribution of parenthood is clearly intended to be on the basis of the “presence or absence of inheritable characteristics”. Evidence was adduced by several experts on the nature of motherhood. They also made arguments based on Articles 40.3, 41 and 42 of the Constitution.
Counsel on behalf of the State sought to rely on Article 40.3.3 and also argued that DNA should not be the quality that determines parenthood. They adduced detailed expert evidence on epigenetics, which is the process of gene expression whereby some genes are turned on and some genes are turned off. What happens in the womb can activate or deactivate certain genetic traits in the baby.
Abbott J concluded while surrogacy contracts were not illegal, they were not enforceable in any court. He found that, in this case, the fact that the Status of Children Act allows for blood, and hence DNA, testing in relation to issues determining maternity means that there is a legally established if, perhaps, less used avenue for an t-Ard Chlaraitheoir to investigate the claims of genetic mother in respect of children born as a result of surrogacy arrangements. He relied on the judgments in N –v- Health Service Executive