Amram on Maternity Leave & Surrogacy: The Impact of EU Law

AmramHuman Rights in Ireland welcomes this guest post from Dr Denise Amram. Denise is a qualified Italian solicitor and is currently a visiting postdoctoral researcher at the Sutherland School of Law, University College Dublin.

Surrogacy is a sensitive issue, involving ethical, sociological, medical, and legal issues. The growing interest in this form of assisted reproduction has not spared the rise of legal issues related to the recognition of rights to people undertaking surrogacy.

Last Thursday two different Opinions were delivered by two Advocates General (AG) of the Court of Justice of the European Union (CJEU) about the possibility for the intended mothers to access to maternity leave.

Both the Opinions may affect Court’s decisions respectively on Case C-363/12 and on the Case-167/12, and –consequently- EU Member States approaches on dealing with surrogacy matters and employment issues.

The first Opinion, delivered by AG Wahl, concerns an Irish woman  (Z) who arranged for surrogacy because of a rare condition by which she could not support a pregnancy even if her ovaries were healthy. During the surrogate’s pregnancy, her employer granted her just the unpaid leave, refusing her the maternity one. She asked the Equality Tribunal to verify whether or not such refusal constitutes discrimination on grounds of sex, family status and disability.

The second Opinion, delivered by AG Kokkot, relates to a British woman (C.D.) who arranged for surrogacy and asked a maternity leave. Her request was firstly refused, and then granted by her employer. However, since C.D. intended to have a further child by a surrogate mother, she decided to claim against the original refusal of her application before the Employment Tribunal, complaining discrimination on the grounds of sex and/or pregnancy and motherhood. Continue reading “Amram on Maternity Leave & Surrogacy: The Impact of EU Law”

Amram on Maternity Leave & Surrogacy: The Impact of EU Law

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 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.

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.

Continue reading “Surrogacy in the Courts: The Definition of Motherhood”

Surrogacy in the Courts: The Definition of Motherhood

Surrogacy Difficulties

Today’s Irish Times reports that an Irishman and his wife (an EU citizen) have been granted leave to bring High Court proceedings in an effort to secure an Irish passport for their baby daughter who was born as a result of a surrogacy arrangement with a woman in Ukraine. Leave was granted by Peart J. in an ex parte application yesterday. The baby, who was born in January 2011, is not entitled to Ukrainian citizenship and can lawfully remain in the Ukraine for just 90 days. Without travel documentation, however, she cannot leave and the couple claim that she may be placed in an orphanage if they cannot get her out of Ukraine.

As reported by the Irish Times, the couple have initiated proceedings against the Minister for Foreign Affairs and they are seeking a court order compelling the Minister to issue an Irish passport or emergency travel documentation for their currently “stateless” baby. In the alternative, they seek orders directing the Minister to consider their application for travel documentation and to provide a reasoned decision on that. Furthermore, the couple want a declaration that any failure to answer their application speedily Continue reading “Surrogacy Difficulties”

Surrogacy Difficulties