Surrogacy in the Courts: The Definition of Motherhood

We are delighted to welcome this guest post by Andrea Mulligan. Andrea is a PhD Candidate at the Law School in Trinity College Dublin, researching the regulation of assisted reproduction in Ireland. She also lectures in Law and Bioethics on the LL.M programme in TCD.

This week Mr. Justice Henry Abbott in the High Court is hearing a case that concerns the attribution of legal motherhood when a child is born to a surrogate mother. The ordinary prohibition on reporting of family law cases has been relaxed to allow reporting of some of the evidence and submissions in R & Another v An tArd Chláraitheoir, though not the evidence of the parties to the case. Surrogacy, where one woman gestates a pregnancy on behalf of another, can take two different forms. A “traditional” surrogate uses her own egg (ovum) whereas a “gestational” surrogate has an embryo, created through the use of in vitro fertilization, implanted in her uterus. In the former case the surrogate has the same genetic link to the child as any biological mother, in the latter the surrogate has no genetic link to the child at all.

The surrogacy arrangement at the centre of the current case was one of gestational surrogacy. The applicants are a married couple who used IVF to produce embryos from their own genetic material. The surrogate is the sister of the genetic mother. Counsel for the applicants has described her decision to act as a surrogate for her sister as an act of pure altruism, through which she hoped to allow her sister the same joy of parenting that she herself had experienced. Everything having gone to plan, the twins now live with the commissioning couple, the genetic parents. This would seem to be the perfect surrogacy success story, were it not for the fact that the surrogate remains the legal mother of the twins under Irish law.

On the twins’ birth the surrogate was registered as the mother, the details having been sent to the registrar by the hospital where the twins were born. Subsequently the applicants contacted the local registrar and requested that the genetic mother be registered as the twins’ mother. The matter was referred to the Chief Registrar, who stated that he did not have the power to change the mother’s name on the register, even after being presented with DNA evidence, statutory declarations from the parents and a letter from the IVF clinic detailing the circumstances of the twins’ birth. As a result, the genetic parents decided to commence legal proceedings. Their claim is brought under the Status of Children Act 1987 and the Guardianship of Infants Act 1964, and they seek to have the register amended to state that the legal mother of the twins is the genetic mother.

Irish law makes no specific provision for the practice of surrogacy or for the relationships arising from it, just as it makes no provision for any form of assisted reproduction. Matters of parenthood fall to be decided under statutes that did not contemplate surrogate motherhood and its attendant complications. In February 2012, after one couple chose to publicly discuss their difficulties in establishing parenthood of a child born through an international surrogacy arrangement, the Department of Justice issued guidelines for the practice of surrogacy. These clarify the applicable law and highlight some steps that should be taken by genetic parents seeking to establish legal parenthood of their children. The guidelines are of little use to the Applicants, however, because they focus on international surrogacy arrangements in which both citizenship and parenthood need to be established, in which provision may need to be made for child to enter the jurisdiction. By contrast, the case before the High Court concerns an Irish surrogate who, it appears, may have had treatment in an Irish clinic.

The crux of the case is the question of what the definition of motherhood is at Irish law, and what it should be in the age of surrogacy. In court the Chief Registrar, Mr. Kieran Feely, maintained that he has no power to change the register. He gave evidence that registration of births in Ireland operates on the principle that mater semper certa est – motherhood is always certain. Mr. Feely also stated that in his view this was the right approach because it has the advantages of certainty and simplicity.

Counsel for the applicants, Mr. Gerard Durcan SC, has argued that the blood-link between parent and child has been widely recognised in Irish law, and that it is a ‘primordial constitutional principle.’ He stated that the attribution of parenthood under the Status of Children Act 1987 is clearly intended to be on the basis of the “presence or absence of inheritable characteristics.” Counsel for the respondent, Mary O’Toole SC submitted, in response to a query from Mr. Justice Abbott, that ‘blood-link’ should not necessarily be taken to mean a genetic link.

It seems that the medical experts have been reluctant to take a categorical view on the nature of motherhood. Professor Andrew Greene, director of the Centre for Genetics based in Our Lady’s Children’s Hospital, Crumlin, expressed the view that genetic parenthood was a major contribution to the development of the child but not the only contribution. The role of the gestational mother should also be acknowledged. Similar concerns were expressed by Dr. Fionnuala Breathnach, an obstetrician at the Rotunda Hospital in Dublin. Dr. Mary Wingfield, a consultant obstetrician and gynaecologist with the National Maternity Hospital, Holles Street stated that she was very much in favour of surrogacy and that in her opinion the legal parents of a child should be the commissioning couple. This approach would prioritise the principle of intent in the attribution of parenthood, rather than establishing a bright line rule based on genetics alone. Intent-based parenthood was found to be the optimal rule by the Irish Commission on Assisted Human Reproduction, which reported in 2005. The Report stated that the child born through surrogacy should be presumed to be that of the commissioning couple, on the basis that this would protect the interest of both the child and the social parents. Both Dr. Wingfield and Prof. Greene were members of the Commission.

The court will likely hear evidence of the way in which parental status is determined in other jurisdictions. In the UK most aspects of assisted reproduction are regulated through the Human Fertilisation and Embryology Acts 1990 and 2008. Those Acts retain a clear rule that the mother of a child is the woman who gestates the pregnancy but to mitigate the impact of this on commissioning couples the Act provides for the making of parental orders by courts, upon which the Registrar General will re-register the child as the child of the commissioning couple. In the (rare) event that the surrogate will not consent to a parental order being made, the child may be adopted by the commissioning parents, though the adoption process is an arduous one. This approach promotes certainty and simplicity, while not seriously disadvantaging the commissioning parents or the surrogate.

The High Court faces a weighty decision in ascertaining the meaning of parenthood in Irish law. A finding that parenthood in Irish law is based solely on genetics would have far-reaching implications for assisted reproduction. Is the father of a donor-conceived child the (potentially anonymous) man who donated sperm or the man who sought fertility treatment, or neither of those people? Who are the parents of a child born of a donated embryo? A broadly expressed constitutional holding on the matter would constrain the ability of the legislature to craft rules for parental status in assisted reproduction, though admittedly it has been far from enthusiastic in this task to date.

The legal attribution of motherhood is just one of the many issues that arise in relation to the practice of surrogacy. Irish law also needs to address the questions of payment for surrogacy services, the enforcement of surrogacy contracts and the heightened risk of exploitation in international surrogacy arrangements, to which Dr Whingfield adverted in the High Court. It may be the case that the principle of mater semper certa est provides a simple answer to the attribution of motherhood but that principle dates from a time when it enjoyed the virtue of universal truth. Before the advent of gestational surrogacy motherhood really was always certain, in contrast to fatherhood, which never has been. The age of assisted reproduction provides many opportunities but with them come new complexities. Motherhood is no longer certain – it’s time Irish law found a way to tackle that.

Surrogacy in the Courts: The Definition of Motherhood

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