M.R and Another v an tArd Chlaraitheoir and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Henry Abbott
Judgment Date05 March 2013
Neutral Citation[2013] IEHC 91
Date05 March 2013

[2013] IEHC 91

THE HIGH COURT

[No. 46 M/2011]
R (M) & Ors v An tArd Chlaraitheoir & Ors
IN THE MATTER OF AN APPEAL PURSUANT TO S. 60(8) OF THE CIVIL REGISTRATION ACT 2004 AND IN THE MATTER OF THE CONSTITUTION OF IRELAND AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964 AND IN THE MATTER OF THE STATUS OF CHILDREN ACT, 1987 AND IN THE MATTER OF MR AND DR (CHILDREN)

BETWEEN

MR AND DR (SUING BY THEIR FATHER AND NEXT FRIEND OR) AND OR AND CR
APPLICANTS

AND

AN tARD CHLARAITHEOIR, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

STATUS OF CHILDREN ACT 1987 S35(8)(B)

CONSTITUTION ART 34

CONSTITUTION ART 40.4.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41

GUARDIANSHIP OF INFANTS ACT 1964 S6A

CIVIL REGISTRATION ACT 2004 S63

CIVIL REGISTRATION ACT 2004 S22(1)

CIVIL REGISTRATION ACT 2004 S30

CIVIL REGISTRATION ACT 2004 S65

GUARDIANSHIP OF INFANTS ACT 1964 S2

N (E) & N (ML) v HEALTH SERVICE EXECUTIVE & ORS 2006 4 IR 374

G v BORD UCHTALA & ORS 1980 IR 32 1979 113 ILTR 25

CONSTITUTION ART 40.3.1

O'T (I) v B; H (M) v DOYLE & ROTUNDA GIRLS AID SOCIETY 1998 2 IR 321 1998/29/11797

K (J) v W (V) & PROTESTANT ADOPTION SOCIETY 1990 2 IR 437

MCD (J) v L (P) & M (B) 2010 2 IR 199

CONSTITUTION ART 40.3

CONSTITUTION ART 42

CONSTITUTION ART 42.5

N (F) & B (E) v O (C) & ORS 2004 4 IR 311 2004/35/8210 2004 IEHC 60

G (D) (A MINOR) v EASTERN HEALTH BOARD & ORS 1997 3 IR 511 1998 1 ILRM 241 1998/7/1838

CONSTITUTION ART 40.1

S (A) & v S (W) & REGISTRAR GENERAL OF BIRTHS & DEATHS 1983 IR 68 1984 ILRM 66 1983/4/1063

RUSSELL v RUSSELL 1924 AC 687

CONSTITUTION ART 37

STATUS OF CHILDREN ACT 1987 S35

STATUS OF CHILDREN ACT 1987 S35(1)

STATUS OF CHILDREN ACT 1987 S35(4)

STATUS OF CHILDREN ACT 1987 PART VII

STATUS OF CHILDREN ACT 1987 S38(1)

STATUS OF CHILDREN ACT 1987 S37

D (JP) v G (M) 1991 1 IR 47 1991 ILRM 217 1990/9/2582

FAMILY LAW REFORM ACT 1969 S20(1) (UK)

FAMILY LAW REFORM ACT 1987 S27 (UK)

FAMILY LAW REFORM ACT 1969 S20 (UK)

HUMAN FERTILISATION & EMBRYOLOGY ACT 1990 S27 (UK)

ROCHE v ROCHE & ORS 2010 2 IR 321

CONSTITUTION ART 40.3.3

ADOPTION ACT 2010 S54

CONSTITUTION ART 40

O'R (W) v H (E) 1996 2 IR 248 1996/14/4316

D (M) (A MINOR) v IRELAND & ORS 2010 2 ILRM 491 2010/10/2237 2010 IEHC 101

CIVIL REGISTRATION ACT 2004 PART III

FOY v AN T-ARD CHLARAITHEOIR & ORS UNREP MCKECHNIE 9.7.2002 2003/22/5126

P (Z) v F (T) & Z (P) UNREP (CASE NO 2011/68CAF)

STATUS OF CHILDREN ACT 1987 S36(4)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)(C)

INDEPENDENT NEWS & MEDIA LTD & ORS v A 2010 1 WLR 2262 2010 3 AER 32 2010 EMLR 22 2010 EWCA CIV 343

INDEPENDENT NEWS & MEDIA LTD & ORS v A 2009 1 MHLR 336 2010 1 FLR 916 2009 EWHC 2858 (FAM)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

STATUS OF CHILDREN ACT 1987 S36

A WARD OF COURT (WITHHOLDING MEDICAL TREATMENT) (NO 2), IN RE 1996 2 IR 79

CIVIL LIABILITY & COURTS ACT 2004 S40

FAMILY LAW

Civil registration

Application for declaration that genetic mother entitled to be registered as mother - Surrogacy - Whether genetic parents entitled to be treated as parents - Evidence of expert witnesses - Blood link - Constitutional rights - Principle of mater semper certa est - Whether rebuttable presumption - Family arrangements - Registration of births - Purpose of the register - Genetics versus epigentics - Determinative nature of chromosomal DNA - Surrogacy contract - Alternative arrangements - Media reporting - Discretion to rule parts of evidence be heard in public and parts in private - N v Health Service Executive [2006] 4 IR 374; In re G [2006] UKHL, [2006] 1 WLR 2305; G v An Bord Uchtála [1980] IR 32; I O'T v B [1998] 2 IR 321; JK v VW [1992] 2 IR 437; JMcD v PL [2010] 2 IR 199; FN v CO [2004] IEHC 60, (Unrep, Finlay Geoghegan J, 23/3/2004); DG v The Eastern Health Board [1997] 3 IR 511; S v S [1983] 1 IR 68; Russell v Russell [1924] AC 687; JPD v MG [1991] 1 IR 47; Roche v Roche [2010] 2 IR 321; WOR v EH [1996] 2 IR 248; D (a minor) v Ireland [2010] IEHC 101, (Unrep, Dunne J, 26/3/2010); Foy v An tArd Cháraitheoir [2002] IEHC 116, (Unrep, McKechnie J, 19/10/2007); Independent News Media Limited [2010] 1 WLR 2262 and Re Ward of Court [1996] 2 IR 79 considered - Status of Children Act 1987 (No 26), ss 35 and 36 - Civil Registration Act 2004 (No 3), s 60(8) - Declarations granted (2011/46M - Abbott J - 5/3/2013) [2013] IEHC 91

R(M) v An tArd Chláraitheoir

Facts: OR and CR were a married couple who were unable to conceive children in the normal way. As such, they enlisted the help of CR”s sister, the notice party, who agreed to be a gestational mother. The sperm of OR and the ova of CR were fertilised in vitro and the resulting zygote was implanted into the womb of the notice party. As a result of this, a pair of twins known as MR and, were born with OR and CR assuming parental duties. OR and the notice party attended the Registrar”s office shortly afterwards to register as the father and mother of the children respectively. OR and CR then subsequently sent a letter along with DNA evidence verifying the pair as genetic parents to the Superintendent Registrar for Dublin seeking the modification of the register so CR would be given the title as mother on the basis that what was currently registered was an error under s.63 of the Civil Registration Act 2004. This request was refused.

OR and CR sought a number of remedies from the court including a declaration that CR was the mother of MR and DR pursuant to section 35(8)(b) of the Status of Children Act 1987 or under the court”s inherent jurisdiction, a declaration that the continued refusal to recognise this was a breach of the CR”s constitutional rights, and various orders that would involve modification of the birth register. In the alternative, a declaration that OR and CR were the guardians of MR and DR was sought, with an accompanying order appointing them as guardians pursuant to section 6A of the Guardianship of Infants Act 1964 or under the court”s inherent jurisdiction. It was the first respondent”s case that the principle of mater semper certa est meant that despite the fact he was convinced the notice party was not the biological mother, the fact she gave birth to MR and DR made her the mother under Irish law. He justified the principle on the basis that to do otherwise would create great uncertainty due to the possible necessity of carrying out genetic verification for all births.

Held by Abbott J that though the Statute of Children Act 1987 did not envisage a situation such as the present, it allowed for modification of the register of births in situations where blood testing (and by extension DNA testing) showed that a maternity claim was fraudulent. In terms of whom the court felt should be determined as the true mother of the children, a number of expert witnesses gave evidence on the science of genetics versus the science of epigenetics. After listening to the evidence, it was held that genetics held sway amongst the two science fields and that a child”s development in the womb was predominantly influenced by its genetics as opposed to various influences during pregnancy attributable to the gestational mother.

It was further held that the principle of mater semper certa est developed at a time when the woman who gave birth to a child was the indisputable mother. This principle was now faced with a development in science which allowed for the genetic and gestational mothers to be different and so it was held that it did not survive the enactment of the Constitution insofar as it applied to the situation post IVF. As such, the court granted a declaration that CR was the mother of MR and DR pursuant to section 35(8)(b) of the Status of Children Act 1987 and that any continued failure to recognise this was unlawful in breach of CR”s constitutional rights, in particular pursuant to the provisions of Articles 34, 40.4.1 and 40.3.2 and 41

1

1. the proceedings the applicants are seeking the following:

1

A declaration that CR is the mother of MR and DR pursuant to section 35(8)(b) of the Status of Children Act, 1987 or otherwise pursuant in the inherent jurisdiction of this Honourable Court;

2

A declaration that the continued failure to recognise and acknowledge CR and OR as parents of MR and DR is unlawful, and fails to vindicate and protect the constitutional rights of the Applicants, in particular pursuant to the provisions of Articles 34, 40.4.1 and 40.3.2 and 41 of the Constitution;

3

A declaration that CR is entitled to be registered as the mother of MR and DR, and to have the Register of Births corrected to reflect their true parentage;

4

If necessary an order directing an tArd Chlaratiheoir to correct the Register of Births so that it records OR as the father and CR as the mother of MR and DR;

5

If necessary, a declaration that CR and OR are the guardians of the MR and DR, and then;

6

In the alternative an order pursuant to Section 6A of the Guardianship of Infants Act 1964 (as amended), or otherwise pursuant to the inherent jurisdiction of this Honourable Court appointing CR and OR as the guardians of MR and DR.

2

2. The central legal issue to be addressed is who, in law, is entitled to be treated as the parents of the twins and to carry out the duties, and to exercise the functions which follow from that status. In particular, who, in law, is to be treated as the mother of the twins.

BACKGROUND FACTS
3

3. In this case the term "genetic father" refers to the man who provides the sperm which is used in the fertilisation process. The term "genetic mother" refers to the woman who provides the ovum which is used in the fertilisation process. The term "gestational mother"...

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