M.R & Anor -v- An tArd Chlaraitheoir & Ors, [2013] IEHC 91 (2013)

Docket Number:2011 46 M
Party Name:M.R & Anor, An tArd Chlaraitheoir & Ors
Judge:Abbott J.

THE HIGH COURT[2011 No. 46 M]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)BETWEENMR AND DR (SUING BY THEIR FATHER AND NEXT FRIEND OR) AND OR AND CRAPPLICANTSANDAN tARD CHLARAITHEOIR, IRELAND AND THE ATTORNEY GENERALRESPONDENTSJUDGMENT of Mr. Justice Henry Abbott delivered the 5th day of March, 20131. In 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 Chlaraitheoir 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. 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 FACTS3. 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” refers to the woman in whose womb the zygote is implanted, who carries and subsequently gives birth to a child.4. OR and CR are a married couple. CR was unable to give birth in the normal way, so by arrangement with her sister, the notice party, ova provided by CR were fertilised by sperm provided by her husband OR. As a result of that fertilisation, which took place in vitro, the twins, MR and DR, were created. The zygotes which were produced as a result of that fertilisation were implanted in the womb of the notice party who subsequently gave birth to the twins. The applicants had agreed prior to the birth that the two children, the twins, would be brought up and would be reared as the children of the CR and OR, and in practice that is what has happened. OR is the genetic father, CR is the genetic mother and the notice party is the gestational mother.5. There is no dispute between the genetic parents and gestational mother as to what should happen and how they would wish these children to be treated in fact and in law. The difficulty arises because the State authorities take the view that as a matter of law the person who must be treated as the mother of the twins is the, the gestational mother. After the birth of the twins the notice party and OR attended the Registrar's office and were registered as the parents. Following registration a letter accompanied by DNA evidence was sent to the Superintendent Registrar for Dublin seeking the correction of an error under s.63 of the Civil Registration Act, 2004. This request was refused.EXPERT WITNESS EVIDENCE Doctor Molony6. Dr Clíona Molony is a principal investigator directing research on genetics for Merck Pharmaceuticals and is an adjunct lecturer in genetics and statistical genetics at Brandeis University, Boston, Massachusetts. She has been involved in 25 publications on the issue of genetic analysis to dissect underlying genetics of human conditions.7. Dr. Molony stated that the uniqueness of the human being is complete at fertilisation when the sperm and ovum have come together. The sperm is from the genetic father and the ovum is from the genetic mother. They provide the “full compilation of genetics that then ultimately give rise to who we are.” She added that “DNA…ultimately controls everything”.8. She acknowledged while the gestational mother may affect the foetus in a molecular way she does not alter the DNA. She explained that the DNA does not change, however, the manner in which genes find expression is controlled by epigenetics. Epigenetics is a process of gene expression whereby some genes are turned on and some genes are turned off. What happens in the womb can activate or deactivate certain genetic traits in the baby. It is the environmental component which can change more elastically over time relative to DNA “which is directly inherited and relatively unchanged generation to generation”.9. Dr. Molony emphasised that the DNA sequence is not altered itself by epigenetics and stated that “the expected epigenetic changes…introduced during…the gestational period have been shown to be actually reversible postnatally”. However, they have not proven to be reversible in every case. On cross examination she was asked about experiments in which the gestational mother was experiencing stress and the glucocorticoid receptor genes involved were methylated (turned down), so that the child had a much stronger reaction to stress. Dr. Molony responded that there was the possibility, based on animal models, that if those offspring had been cross fostered into another family, the effect of the experiences and environment that that offspring had been exposed to postnatally could be reversed. In other words the person who looks after the child after birth also has epigenetic effects on the child.10. Another way in which the gestational mother may affect the foetus is microchimerism, which Dr. Molony described as the presence of cells in the body which are “not of oneself”. It involves the migration of the mother's cells into the child. This transfer of cells occurs between the foetus and the gestational mother through the placenta and she highlighted that it does not change the core DNA of the child – the DNA remains the same. She also said it is thought that microchimerism could be considered a risk factor for autoimmune diseases “but that ultimately it is against the backdrop of maybe their own immune profile encoded based on their own genes.” Microchimerism applies between gestational mother and foetus but the number of cells that exist after separation is extremely small – taking specialised techniques to find them. She believes the cell count to be in the order of 1:100,000,000.11. Regarding the impact that environment can have on the foetus reference was made to a Swedish study conducted by Bygren on a population group who were susceptible to famine followed by abundance during the 1800's. He identified on the male line those persons who were descended from people who lived during the period of abundance and his study suggested that the descendents of those feasting lived significantly shorter lives than persons who lived during periods of famine. Following this it was put to Dr. Molony that that the gestational mother can materially affect the way a gene expresses itself in the individual foetus that she is carrying and that change could possibly be carried on to future generations of that foetus. Dr. Molony responded that it could as long as there were no other environmental influences present to reverse it. She said of the study that the expectation is there that there would be some epigenetic influences “but the actual mapping of those events and what gave rise to them hasn't really been elucidated.”12. Dr Molony was of the opinion that the gestational mother “provides an environment that enables the embryo and foetus to grow, which interacts overall with the underlying genetic make-up.” There is no evidence as to whether the epigenetic effects that take place after birth are any greater or less than the epigenetic effects that take place before birth.Professor Green13. Professor Green is a consultant clinical geneticist and has been the director of the Centre for Genetics in Our Lady’s Hospital, Crumlin since 1997. He also holds a professorship of Medical Genetics at University College Dublin and was a member of the Commission on Assisted Human Reproduction (the “Commission”) which produced a report in 2005. The Commission was set up to report on possible approaches to the regulation of all aspects of assisted human reproduction and the social, ethical and legal factors to be taken into account in determining public policy in this area. During the Commission the issue of surrogacy was discussed and it was recommended, with one member dissenting, that surrogacy should be permitted and should be subject to regulation by a regulatory body. The Commission was of the opinion that what all parties intended from the outset of the arrangement should form the basis of recommendations on legal parentage in cases of surrogacy. However, in cases where the birth mother has a genetic link with the child a minority held the view that surrogate mother would be presumed to be the legal parent of the child.14. Professor Green stated that the genome sequence – the entirety of an individual’s hereditary information – is complete on fertilisation and that the genes we inherit are fundamental to us. While these genes are an extremely important part of our development he says that they are not the whole part. He acknowledged that the child’s genetic parentage plays a large role in its identity and is one of the main...

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