Genetic parents recognised as legal parents in landmark Irish decision

In a recent blog, I looked at a case that was pending before the Irish High Court in Dublin regarding legal parentage.  The issue before the court was whether genetic parents who had had twins via a surrogate were entitled to be named on the children’s birth certificates.

The Irish Chief Registrar had refused to record the genetic mother’s name, saying that Irish law only recognised as a child’s mother the person who gave birth to the child.

Mr Justice Abbott gave Judgment yesterday.

He found in favour of the genetic parents, and made a number of declarations supporting the reality that they were the children’s legal parents.  He ruled that they were entitled to have this fact recorded on the children's birth certificates.

The Judge had earlier heard argument on behalf of the Irish State that the maxim Mater Certa Semper Est (motherhood is always certain) applied.  He rejected that argument as having no support in an Irish legislative context. 

He also rejected a submission that an anti-abortion amendment to the Irish Constitution confirmed the birth mother as the legal mother.  The judge said the word "mother" in that article of the Constitution, which related to the existence of the unborn, applied when the foetus was in the womb and not otherwise.

The Irish High Court in Dublin - still nicer than ours..

He said while the science of epigenetics and genetics was likely to develop in the future, it was most unlikely epigenetics would ever trump the deterministic quality of chromosomal DNA.

While the input of a gestational mother to an embryo and foetus was to be respected and treated with care, the predominant determinism of the genetic material in the cells of the foetus permits a fair comparison with the law and the standards for the determination of parentage.

It would be “invidious, irrational and unfair to do otherwise”, he said.

To achieve fairness and constitutional and natural justice for both the paternal and maternal genetic parents, the inquiry in relation to maternity ought to be made on a genetic basis and on being proven the genetic mother should be registered as the mother, he said.

The solicitor for the parents has said her clients were delighted with the outcome, and felt vindicated by the Judgment.

The Irish Stem Foundation said the ruling was another example of the government's continuing failure to get to grips with generating legislation on many areas of contemporary medicine and research.  The Foundation said that the absence of a legislative framework had profound effects for Irish citizens.  It said that the continuing legal void put Irish parents at unnecessary risk and expense.

The Irish Department of Justice said it will give the ruling and its implications very careful consideration.  It said the Minister for Justice, Equality and Defence is preparing a new bill that will address certain aspects of the law on surrogacy.  The Family Relationships and Children Bill is expected later this year.