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Family Law Solicitors

Court surrogacy ruling leaves children in 'legal half-world

Saturday, 8 November 2014

The Irish Indepedent

Dearbhail McDonald

State wins landmark Supreme Court action

DOZENS of children born through surrogacy have been left in a "legal half-world" after the Government won its appeal in a landmark surrogacy action.

Yesterday, a full seven-judge Supreme Court chastised successive Governments over their failure to regulate assisted human reproduction (AHR), including surrogacy. But the Chief Justice, Mrs Justice Susan Denham, said that while other countries have passed laws to regulate the area, any surrogacy law is "quintessentially a matter for the Oireachtas".

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George Gill, solicitor for the birth mother, and Marion Campbell, solicitor for the genetic parents.

Photo: Sasko Lazarov/Photocall Ireland

Marion Campbell, solicitor for the genetic parents and other couples in similar situations, said the children's position needed to be corrected. "It's happening here in this country and it's happening internationally and children are being very exposed because there's no legal framework in place in this country to cover their rights," said Ms Campbell. "It's about time that the Government saw that and brought in the necessary legislation," she added.

The Supreme Court, in a six-to-one majority, ruled that a genetic mother of twins born to a surrogate is not entitled to be registered as their legal mother on their birth certificates.

But it rejected the State's claims motherhood is always certain and said there is no definitive definition of mother in the Constitution or anything in it inhibiting the development of appropriate surrogacy laws.

The Government, which dropped plans to regulate surrogacy in former Justice Minister Alan Shatter's Children and Family Relationships Bill, said a memorandum for an Assisted Reproduction Bill will be brought by year's end.

"I will consult with Justice Minister Frances Fitzgerald, my Government colleagues and others on the preparation of this Bill," said Health Minister Leo Varadkar. "It is likely to deal with the issues of legal parentage, surrogacy, egg and sperm donation, and other related issues."

Judge Denham said the issues in the case arose from developments in assisted human reproduction and said there was "clearly merit" in the Oireachtas legislating because there was a legal "lacuna" about certain rights, especially those of children born via such arrangements. "Any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content," said Judge Denham.

In separate judgments, former Chief Justice Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Donal O'Donnell, Mr Justice William McKechnie and Mr Justice John MacMenamin agreed that the appeal, bought by the State against the High Court decision, should be allowed. Mr Justice Frank Clarke dissented.

Mr Justice O'Donnell said: "Generations of children have now been born in Ireland through assisted reproduction into a legal half-world."

The case centred on twins born, using genetic material from their parents, to a surrogate, a sister of the genetic mother who cannot carry children due to a disability.

The Registrar of Births registered the genetic father as the twins' father on their birth certificates but refused to register the genetic mother because she was not the birth mother, and said the surrogate must be registered as the legal mother.

The genetic parents successfully challenged that in the High Court, which ruled motherhood is based on genetic links.

The State argued that the High Court decision had "massive" implications, including for mothers who bore children using donated eggs, and citizenship and succession rights.