Surrogacy in the Courts.

We are delighted to welcome this guest post by Andrea Mulligan. Andrea’s previous post on surrogacy is here.

Assisted reproduction remains entirely unregulated in Ireland and the courts increasingly find themselves teasing out the complexities of new reproductive technologies without any legislative guidance. The Supreme Court tackled frozen embryo disposition in Roche v Roche [2010] 2 IR 321and the rights of a known sperm donor inJMcD v PL [2010] 2 IR 199In this week’s decision in MR v An t-Ard Chlaraitheoir [2013] IEHC 91Mr Justice Abbott in the High Court took on the question of maternal status in the case of gestational surrogacy.

The twins at the centre of this case were born to a woman who carried the pregnancy for her sister as a gestational surrogate, meaning that she is not their genetic mother. After the birth the parents applied to have the birth certificates amended to reflect the biological reality but the Chief Registrar refused to allow any exception to the registration policy that the birth mother is the legal mother. This position was based on the maxim mater semper certa est – the mother is always certain. Unlike most situations when a surrogacy arrangement ends up in court, everything here had gone precisely to plan, except for the fact that the twins were left with no legal relationship to their biological mother. To remedy this the genetic parents applied to the High Court for a declaration that the biological mother was the mother of the twins pursuant to s.35 of the Status of Children Act 1987, or otherwise in the inherent jurisdiction of the Court. The application was not opposed by the surrogate mother, who was a notice party.

In finding for the applicants, Abbott J. came to a number of interesting conclusions. He began by stating that because the Status of Children Act 1987 allows for blood testing to ascertain maternity there was a legal procedure whereby the birth certificate could be amended, though that procedure is very rarely used.

A substantial portion of the respondents’ submissions were devoted to arguing that DNA should not be regarded as the determinative quality of parenthood. Very substantial expert evidence was placed before the court in relation to epigenetics. Epigenetics is the study of changes in gene expression or cellular phenotype caused by mechanisms other than changes in the underlying DNA sequence. The respondents sought to use this evidence to prove that the impact of the mother on the foetus during pregnancy has a sufficiently substantial effect on the physiology and identity of the resulting child, to justify the presumption of mater semper certa est. In the view of the respondents, to ignore this and treat genetic maternity exactly as genetic paternity would be to ignore their fundamental differences. Though he gave it some consideration, Abbott J. was not convinced by this argument. He based this on a number of observations about epigenetics, including the fact that epigenetic influences do not interfere with the inheritable characteristics of the child. He commented: “While the science of both branches is likely to develop in the future, it is most unlikely that epigenetics will ever trump the deterministic quality of chromosomal DNA.”

Going on to consider the law, Abbott J. observed that the prominence of the principle of mater semper certa estdated from a time when motherhood really was certain. This was indeed the case in the pre-IVF era. Therefore, the fundamental issue before the court was whether in the case of surrogacy the legal and constitutional framework allowed for rebuttal of the presumption. While Abbott J. did not expressly conclude that the principle breached the applicant’s constitutional rights, he did look to the Constitution for guidance on the meaning of motherhood. The respondents argued that the principle had been endorsed by the Constitution in Article 40.3.3 because of that article’s contemplation of the relationship between mother and foetus during pregnancy. They argued that the word mother ought to have the same meaning throughout the Constitution, so it should be interpreted to be inherently linked to pregnancy. Abbott J. rejected this argument, pointing to the conclusions of the Supreme Court in Roche v Roche, in which the court found that the impact of that article was confined to the context of abortion alone.

Abbott J was convinced, however, by the emphasis placed on blood links in the judgments in N v HSE [2006] 4 IR 374 (commonly referred to as the ‘Baby Ann’ case) and JMcD v PL (noted above, concerning a known sperm donor)Turning back to his conclusions on epigenetics Abbott J. concluded that blood relationships mean those based on chromosomal DNA, so determination of maternity could be made on the same basis as paternity: using a DNA test. In addition, Abbott J. found that mater semper certa est was not consistent with the guarantee of fair procedures under the Constitution. He premised this conclusion on the fairness of the comparison between mothers and fathers and the feasibility of maternal DNA tests to facilitate registration.

Interestingly, Abbott J was unconcerned with the evidence that had been presented of the international acceptance of mater semper certa est. He observed that in the Irish context there was nothing that affirmed the presumption and furthermore nothing that made the surrogacy contract illegal, though it was unlikely to be enforceable in court. Accordingly, Abbott J granted the declaration that the biological mother was the legal mother of the twins and was entitled to be recorded as such on the birth certificates.

This case raises a number of important issues. Most conspicuous is its endorsement of the importance of DNA in the establishment of parenthood in the Irish constitutional scheme. This view is very much in sympathy with the decision in JMcD v PL in which the Supreme Court treated a known sperm donor as it would treat any unmarried father. But would the primacy of DNA extend to cases in which the genetic parent is an anonymous sperm or egg donor? In the unlikely event that an anonymous donor sought to enforce their parental status it seems that the court would have to explore the social dimensions of parenthood.

The decision makes it much more feasible and attractive to enter into a surrogacy arrangement in Ireland or for Irish couples to do so abroad. It was clear from the guidelines issued last year by the department of justice in relation to surrogacy arrangements made overseas that a principal problem was the inability of biological mothers to establish any legal relationship with their children, except through adoption. (See “Citizenship, Parentage, Guardianship and Travel Document Issues in Relation to Children Born as a Result of Surrogacy Arrangements Entered into Outside the State” available at www.justice.ie) This decision has dealt with that, and cleared the way for biological mothers to establish parental status. While Abbott J stated that surrogacy contracts are unlikely to be enforceable he clarified the fact that they are not illegal. With the promise of legislation in the form of the Family Relationships and Children Bill later this year, it may be that surrogacy will become a much easier business for Irish couples.

Surrogacy in the Courts.

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