Irish Government to appeal landmark surrogacy ruling

The Irish Government is to appeal a recent court ruling that allowed the genetic mother of twins born to a surrogate to be listed as their legal mother on their birth certificates. The Department of Social Protection said the appeal is needed to 'clarify a number of points of law of exceptional public importance'.

A High Court judge ruled last March that a woman whose eggs were used to fertilise embryos with her husband's sperm was the legal mother of twins born to her sister, who had agreed to act as a surrogate (reported in BioNews 696). After the birth, the authorities had refused to alter the birth certificates, which listed the birth mother as the children's legal mother, prompting the parents to seek the help of the High Court.

The Government contended that the Irish Constitution defines the birth mother as the 'mother' and that the maxim 'motherhood is always certain' should be applied. The couple countered that the law did not expressly define who the legal mother is and that the increased use of assisted reproductive technologies (ART), when the genetic and gestational mother may not be the same person, required the court to determine who is the legal parent or mother.

Mr Justice Henry Abbott disagreed with the Government, saying the maxim related to the existence of the unborn child only when the fetus was in the womb and that, to the contrary, many previous family law cases had prioritised the 'blood link'. He concluded that the genetic mother in this case could be named as the legal parent due to her genetic contribution and her intention to raise the children.

In its statement of appeal, the Irish Government said: 'The judgment raises important questions about how motherhood may be determined under Irish law and has potentially very serious consequences which could, by linking motherhood exclusively to genetic connection, affect a potentially large number of families'.

This is the first of such cases to arise in the Irish courts. Ireland has to date had a comparatively low uptake of ART and a corresponding lack of laws detailing the use of such procedures. The appeal statement also voiced a concern that the High Court ruling could present challenges to the Irish Parliament, the Oireachtas, if it decides to legislate in this area.

The couple's solicitor, Marion Campbell, told the Irish Times that she has been contacted by many other people seeking legal parentage for children born to surrogate mothers.