O.R v an tArd Chláraitheoir

JurisdictionIreland
CourtSupreme Court
JudgeDenham C.J., Mr. Justice John L. Murray, Mr. Justice Hardiman, O'Donnell J, Mr. Justice Clarke, Mr. Justice John MacMenamin, Mr. Justice William, M. McKechnie
Judgment Date07 Nov 2014
Neutral Citation[2014] IESC 60
Docket Number[Appeal No. 263/2013], [S.C. No. 263 of 2013]

[2014] IESC 60

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

O'Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

[Appeal No. 263/2013]

In the Matter Pursuant to Section 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 M.r. and D.r. (Children)

Between:
M.r. And D.r. (Suing by their Father and Next Friend, O.R.) and O.R. and C.R.
Applicants/Respondents
and
An t-Ard Chláraitheoir, Ireland and the Attorney General
Respondents/Appelalnts

And

L.L.
Notice Party
The Equality Authority and the Irish Human Rights Commission
Amici Curiae

Civil Registration – Surrogacy – Mater semper certa est – Respondent seeking to be registered as the mother of two children – Whether the genetic mother should be registered instead of the gestational mother

Facts: The fourth respondent, CR, was unable to become pregnant and to give birth and so by arrangement with the notice party, LL, ova provided by CR were fertilised by sperm provided by the third respondent, OR. That fertilisation took place in vitro. The zygotes which were produced as a result were implanted in the womb of the notice party, who subsequently gave birth to the first and second respondents, MR and DR. The third and fourth respondents and the notice party agreed prior to the birth of the twins that they would be brought up and would be reared as children of the third and fourth respondents, and that is what has occurred. There was no dispute between the genetic parents and the gestational mother as to how they wish the twins to be treated in fact and in law. 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 is the gestational mother. After the birth, the request to have the fourth respondent recorded as the mother of the twins was refused. In 2013, the High Court granted a declaration that the fourth respondent is the mother of the twins, pursuant to s. 35(8)(b) of the Status of Children Act 1987, and a declaration that the fourth respondent is entitled to have the particulars of her maternity entered on the Certificate of Birth. An tArd-Chláraitheoir, Ireland, and the Attorney General, the appellants, appealed against the judgment and orders to the Supreme Court in 2014. They submitted that: the maxim of mater semper certa est is an irrebuttable presumption well established in Irish law, recognised in Article 40.3.3° of the Constitution; the trial judge erred in finding that the case law provides that the relationship and ‘blood link’ which exists between mother and child exclusively is contingent on the genetic link which exists between them; the Status of Children Act 1987, did not place genetic testing on a statutory basis in order to determine both motherhood and fatherhood; the Birth Registration System is based on a recording of observable facts pertaining to the birth of the child and is not capable of recording later events in the existence of the person concerned, relying upon Foy v An tArd-Chláraitheoir [2012] 2 IR; it would not constitute invidious discrimination between mothers and fathers not to permit genetic testing for the basis of determining motherhood; the fourth respondent is not suffering from invidious discrimination as a result of a disability; the issues which arise are matters within the policy making role of the Oireachtas; the trial judge erred and was in excess of jurisdiction in finding that it would be unconstitutional not to confer the legal status of motherhood to a genetic mother. The respondents submitted that: the issues which arise for determination are governed by s. 35 of the 1987 Act; blood tests can be used to establish whether a person is, or is not, the mother or father of a person; the mater sempercerta rule does not take into account scientific developments; the Constitution does not expressly define ‘parents’; although temporal scope and effect of Article 40.3.3° of the Constitution are limited to when the child is in womb, this provision does not to determine who, after the birth, is to be considered the mother of the child in law; the Constitution recognises a duty to protect and vindicate the genetic link between a parent and child; the respondents would otherwise be denied the rights and protections afforded to a family unit.

Held by Denham CJ that, having considered the Constitution, it contains no definitive definition of ‘mother’. Denham CJ noted that the principle that the mother is always certain is reflected in common law cases such as Wilkinson v Adam (1 V. & B.422, 1812), however having reviewed academic literature, Denham CJ noted that there does not appear to be any authority to suggest that mater semper certa est is either an irrebuttable presumption or that it is enshrined as a maxim of ‘Irish public law’. Denham CJ held that neither the Civil Registration Act 2004, nor the 1987 Act, or any other legislation, has been passed by the Oireachtas to address the issues which arise on surrogacy arrangements. Denham CJ held that as a significant social matter of public policy it is clearly an area for the Oireachtas, and it is not for the Supreme Court to legislate on the issue.

Denham CJ held that as neither the common law nor statutory law to date address the issue of the registration of the fourth respondent on the certificate of birth of children born by a surrogacy arrangement, the appeal would be allowed and the orders of the High Court quashed.

Appeal allowed.

Judgment delivered on the 7th day of November, 2014 by Denham C.J.
1

This appeal arises to be decided at a time when there have been radical scientific developments in assisted human reproduction which have not been addressed in legislation. The Court was informed that, a few days before the hearing of the appeal commenced, the Department of Justice published the Draft Heads of a General Scheme of a Children and Family Relationships Bill, 2014, of which Part 5 purported to make provision for surrogacy arrangements. However, this is not an Article 26 Reference, there is no challenge to the constitutionality of any Act of the Oireachtas, and the appeal must be decided on the law as it stands.

2

At the core of the case is the application by the applicants/respondents that the fourth named applicant/respondent be registered as the mother of the first and second appliants/respondents. This case arises out of a surrogacy arrangement whereby the fourth named applicant/respondent is the genetic mother of the children, and the notice party is the gestational mother. The State appellants submitted that the gestational mother is the mother for the purpose of the Civil Registration Act 2004, while the applicants/respondents submitted that the genetic mother should be so registered.

Appeal
3

This is an appeal by An tArd-Chláraitheoir, Ireland, and the Attorney General, the respondents/appellants, referred to as ‘the appellants’, from the judgment of the High Court (Abbott J.) delivered on the 5 th March, 2013, and from the orders of the High Court made on the 16 th May, 2013, and perfected on the 23 rd May, 2013.

Background facts
4

I adopt the background facts as set out by the learned High Court judge.

5

In this appeal the term ‘genetic father’ refers to the man who provides the sperm which is used in the fertilisation process. In this case the third named applicant/respondent, referred to as the ‘third named respondent’, is the genetic father of the first and second named applicants/respondents, who are referred to as ‘the twins’.

6

The term ‘genetic mother’ refers to the woman who provides the ovum which is used in the fertilisation process. In this case the fourth named applicant/respondent referred to as the ‘fourth named respondent’, is the genetic mother.

7

The term ‘gestational mother’ refers to the woman in whose womb the zygote is implanted, who carries and subsequently gives birth to a child. In this case the notice party is the gestational mother.

8

The fourth named respondent was unable to become pregnant and to give birth and so by arrangement with the notice party, her sister, ova provided by the fourth named respondent were fertilised by sperm provided by the third named respondent. That fertilisation took place in vitro. 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.

9

The third and fourth named respondents and the notice party agreed prior to the birth of the twins that they would be brought up and would be reared as children of the third and fourth named respondents, and that is what has occurred.

10

There is no dispute between the genetic parents and the gestational mother as to how they wish the twins to be treated in fact and in law. However, the State authorities take the view that, as a matter of law, the person who must be registered as the mother of the twins is the gestational mother.

11

After the birth of the twins, the notice party and the third named respondent 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 to have the fourth named respondent recorded as the mother of the twins was refused.

12

There is no dispute as to the fact that the third and fourth named respondents are respectively the genetic father and the genetic mother of the twins. Nor is it disputed that the notice party is the gestational mother of the twins.

13

All named applicants/respondents are referred to collectively as ‘the...

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