Irish Supreme Court struggles with outcome of surrogacy arrangements

20 November 2014 by Rosalind English

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M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors [2014] IESC 60 (7 November 2014) – read judgment

The definition of a mother, whether she is “genetic” or “gestational” for the purpose of registration laws was a matter for parliament, not the courts, the Irish Supreme Court has ruled.

At the core of the case was the question whether a mother whose donated ova had resulted in twin children born by a surrogacy arrangement should be registered as their parent, as opposed to the gestational mother who had borne the twins.

The genetic mother and father sought her registration as “mother” under the Civil Registration Act, 2004, along with a declaration that she was entitled to have the particulars of her maternity entered on the Certificate of Birth, and that the twins were entitled to have their relationship to the fourth named respondent recorded on their Certificates of Birth.

The arguments before the Court

The State appellants submitted that the gestational mother was the mother for the purpose of the Civil Registration Act 2004, while the respondents submitted that the genetic mother should be so registered. There was no dispute between the genetic parents and the gestational mother (sister of the genetic mother) as to how they wished the twins to be treated in fact and in law (see my previous post on a UK case where there was such a dispute and how the court dealt with it). However, the State authorities took the view that, as a matter of law, the person who must be registered as the mother of the twins was the woman who gave birth. In the High Court the respondents successfully challenged the irrebuttable presumption in Irish law,  that has survived all advances in reproductive technology, that the individual at parturition is assumed to be the mother of the child – the (now somewhat meaningless) Latin maxim mater semper certa est.

In jurisdictions (such as Ireland) where surrogacy arrangements are not illegal, it follows that the surrogacy contract and arrangements pursuant thereto leading to the birth of a child do not lead to any wrong, whether of a criminal or civil nature. The High Court therefore allowed the respondents’ application for an order that the genetic mother be registered as the mother of the twins. Abbott J was not swayed by the State’s argument that epigenetics could usurp the paramount role of chromosomal DNA in parenthood:

Up until recent times it had been widely thought that the influence of chromosomal DNA was the sole influence on the identity and development of a foetus. Epigenetics suggests that other factors, such the transfer of microchimeric cells from mother to baby and drug abuse during pregnancy, can also influence the genetic make-up of a child. However, having considered the evidence adduced on this issue, Abbott J. was satisfied that “the influence of such epigenetic occurrences is not of such significance as to alter the overriding significance of chromosomal DNA for the purpose of determining identity and inherited characteristics leading to a conclusion of the paternity and genetic maternity …

it is most unlikely that epigenetics will ever trump the deterministic quality of chromosomal DNA.

The State appealed, submitting inter alia that the judge had erred “in placing overwhelming weight on chromosomal DNA as being determinative of maternity … and in not placing the relevant and sufficient weight on the biological role of the gestational mother.”

“Epigenetics” is the process of gene expression whereby some genes are turned off and some turned on, and in this context concerns the in utero input of the gestational mother into the transition from the donated egg, fertilised by the genetic father, into a fully formed foetus.  The substance of the State appellants’ argument turned, in fact, on the science of epigenetics, since they argued that the input of the gestational mother to an embryo and foetus (not containing genetic material from her) was to be “respected and treated with care and prudence”. There was also a semantic plank to the appellants’ argument in that the widened definition of mother, for which the respondents were contending and for which they found favour in the court below, “permits the existence of two mothers, an interpretation in law which leads to constitutional and public law absurdity”.  The status of adoptive parents was dealt with by a specific statutory regime which allows the status of mother to shift from the birth mother to the adoptive mother, a matter of public law which did not displace the application of the common law maxim of mater semper certa est to the respondents in this case.

The Irish Human Rights Commission, as an amicus, submitted that the Court should look to the European Convention on Human Rights and the UN Convention on the Rights of the Child. They contended that the Irish State, having failed to regulate or restrict the right of persons such as the genetic mother and father to found a family by way of surrogacy, could not deny such persons parental status or prevent the children from being members of that family. It was also in the best interests of the twins to have some certainty regarding their familial status, irrespective of the State’s interpretation of the Irish Constitution. Indeed, the Commission pressed their argument further by contending that the failure of the State to allow for the recognition of a familial relationship between persons in the situation of the fourth named respondent and the twins did not vindicate the rights of respondents protected by the Constitution itself.

Legal background

Although the Irish Constitution specifically requires respect for the life of the foetus in utero, there is no definitive definition of “mother” to be found anywhere in its provisions. Nor did not appear to be any evidence that the maxim mater semper certa est formed part of the Common Law, and no stream of reference  to mater semper certs est was to be found in legal writings.

In England and Wales  there is no common law rule or maxim in relation to maternity; it is judicially regarded a fact. The issue of surrogacy has been resolved by the statutory position adopted by the Human Fertilisation and Embryology Act. 1990.  But neither the statutory nor the common law of Ireland has addressed the issue of motherhood in a surrogacy situation. As Denman C.J. said,

As a significant social matter of public policy it is clearly an area for the Oireachtas, and it is not for this Court to legislate on the issue.

All the members of the Supreme Court was unanimous that this was a question for Parliament to settle, and the appeal was allowed.

Comment

As Hardiman J points out, the adjustment to statute law called for by the court is well overdue.

There is, at present, a serious disconnect between what developments in science and medicine have rendered possible on the one hand, and the state of the law on the other. It is as if Road Traffic Law had failed to reflect the advent of the motor car. The failure to adapt the law in relation to developments in Embryology of course, affects far fewer people, but it affects them in a peculiar and intimate fashion which makes statutory law reform in this area more than urgent.

It was “self evident” to him that this was not one for the courts.

questions as basic as the one just posed cannot be answered by any technical legal exegesis or even by any purely logical process. This is because, at bottom, the question raised is not a legal question or a purely logical question. It is a question of values and attitudes so deep that it is an understatement to call it a matter of policy.

One might think the Court was being unnecessarily timorous in the face of a tardy legislature that had allowed this injustice to arise, but there are serious implications for reinterpreting the statutory process for registering a birth, however colourless that process may be: for example, if the High Court’s ruling had been upheld, and the genetic mother became the only definition of mother to be recognised in this process, one consequence would be that such a declaration would apply generally and to all situations, so that previously registered mothers and fathers could lose that status and anonymous donors of sperm and ova could become entitled to declarations of parentage and registration.  Parents whose lack of ability to produce viable gametes relying on donor eggs or sperm are registered as parents under current Irish law without difficulty: the female because she gives birth and the male because he is either the husband or has acknowledged parenthood. But the appellants pointed out that at least in theory, all of these people and their families would be at risk of losing their status and have their legal position thrown into uncertainty if the High Court Judgment were held to be correct.

How, then, have we death with this conundrum in this country?  As pointed out in this judgment, UK law provides for the regulation of assisted reproduction in general and for surrogacy agreements under limited circumstances, in the Human Fertilisation and Embryology Acts of 1990 and 2008. This legislation is careful to specifically provide that a woman who has a child by IVF is a mother, and s.25 of the Family Law Reform Act 1969 was amended to provide that persons who had children by artificial insemination or IVF were not to be excluded from parentage because of the absence of “inheritable characteristics”. The applicants argued in the instant case that it should be deduced from this that without such an express saver such a person (e.g. the mother with only a gestational role)  would have been excluded from the definition of parent. In simple terms, it is therefore argued that the UK, by providing for blood and now scientific testing, made genetics the determinant of parenthood generally.

O’Donnell J did not agree that the English statute provided any guidance in this case. To be sure, DNA testing does not permit, any more, the identification of the single female person involved in the reproductive process from conception to birth, and the exclusion of any other person. For the purposes of registration, a choice must be made between two persons who each fulfil part of the function traditionally performed by a mother. From a human point of view, in his view, it was “completely wrong” that a system, having failed to regulate in any way the process of assisted reproduction, and which accordingly permits children to be born,

nevertheless fails to provide any system which acknowledges the existence of a genetic mother not merely for the purpose of registration, but also in the realities of life including not just important financial issues such as inheritance and taxation, but also the many important details of family and personal life which the Constitution recognises as vital to the human person. Very different issues would arise in such circumstances.

John MacMenamin J reminds us of two news story which emerged after the ruling by the High Court in the Irish case two news stories emerged which demonstrated that, unfortunately, surrogacy can raise difficult issues. The first report related to a twin baby boy with Down’s syndrome who was “left behind” by his Australian commissioning parents with his Thai surrogate mother because, it was said, of a number of medical problems.

The second case concerned another commissioning couple, where it was suggested, an Australian commissioning father had engaged in sexual misconduct with the surrogate children, in circumstances where the Thai surrogate mother had been ambivalent about the commissioning parents taking the twins to Australia.

Such cases are not unique. They demonstrate some of the issues which can, sometimes, arise with surrogacy. In this appeal, the adult parties entered into an altruistic arrangement amongst the adult parties. There was no commercial dimension. But the question arises as to whether the facts of this case be segregated from others in law? This judgment seeks to approach the questions arising, primarily at the level of statutory interpretation, within the parameters argued in the appeal.

Be that as it may, surrogacy is now a fact of life, and the law has to recognise that the existence of a necessary link between genetics and giving birth is, no longer a valid one. It remains to be said that this  appeal was unique in that, between the time of the High Court order and this appeal, the then Minister for Justice produced a draft Bill which was placed before the Oireachtas, inter alia, addressing surrogacy. As MacMemin J points out, these questions should not be put “on hold”. Some of the issues which arose in this case will, in some other guise, arise again soon.

Science does not stand still, especially in exploring the frontiers of human existence by use of assisted human reproduction. The human situation in this case, and others, renders it incumbent on the legislature to attempt to address these questions.

I might just observe, by way of a postscript, that the Strasbourg Court is somewhat schizophrenic on this question. Rather similar issues arose in two French cases, Mennesson v. France 651952/11, Labasse v. France 65941/11. Here the question was whether the French authorities could, under French law, register the births of twins who had been born arising from a surrogacy arrangement made in the United States and where the commissioning parents had been recognised in law there as being the parents of the children. Here, the issue is fundamentally one of statutory interpretation. French law did not even permit surrogate parents to adopt children born of a surrogacy agreement. Such agreements were actually a criminal offence. However applying the “best interest” principle, the ECtHR held that it could not be in a child’s best interest to deprive him or her of a family tie, when the biological reality of that tie was established, and the child and the parent both sought recognition of that link. Thus, the ECtHR held that, by completely preventing the recognition and establishment of children’s legal relationships with their biological father, the French State had overstepped the permissible margin of appreciation. The ECtHR held that the children’s Article 8 ECHR rights to respect for their family right had thereby been infringed.

By way of contrast, however, the Court observed that, subject to the terms of Article 8, there was no prohibition on a member state legislating against surrogacy insofar as such legislation was in accordance with the law, and necessary in a democratic society, in the circumstances outlined in Article 8.2 ECHR.

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