THE SUPREME COURT
[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)
M.R. AND D.R.
(SUING BY THEIR FATHER AND NEXT FRIEND, O.R.)
AND O.R. AND C.R.
AN t-ARD CHLÁRAITHEOIR, IRELAND AND THE ATTORNEY GENERAL
THE EQUALITY AUTHORITY AND THE IRISH HUMAN RIGHTS COMMISSION
Judgment of Mr. Justice John MacMenamin dated the 7th day of November, 2014.
1. I would agree with the order proposed by Denham C.J., Hardiman J. and O’Donnell J. in allowing the appeal. However I wish to add some observations of my own on the issues before the Court, and the form of order which a Court might make, in an exceptional case such as this. The appeal is against the judgment of Abbott J. in the High Court wherein he granted a declaration pursuant to s.35 8(b) of the Status of Children Act 1987 that the fourth-named applicant, C.R., is the mother of the first- and second-named applicants, and a further declaration that the State’s continued failure to recognise and acknowledge the applicants, C.R. and O.R. as the mother and father of the two children was unlawful, and failed to vindicate and protect the applicants’ constitutional rights under Articles 34, 40.4.1, 40.3.2, and 41 of the Constitution.
2. At first sight, the circumstances of this case would attract immediate sympathy. The fourth-named applicant/respondent, C.R. (to whom I will refer without it having a legal significance as the “the genetic mother”), and O.R. the third-named applicant/respondent (“the genetic father”), are a married couple who wished to have a family. Unfortunately, the genetic mother suffers from a congenital medical condition which prevents her bearing children. Consequently, the couple came to a surrogacy agreement with the genetic mother’s sister (“the birth mother”). The agreement was that the father’s sperm, and the genetic mother’s egg, would be implanted in the birth mother’s womb. The birth mother would undergo the process of gestation, and ultimately give birth to the child or children. Arrangements were put in place by a Dublin fertility clinic. The parties signed a surrogacy agreement which sought to address various legal consequences which might arise both during, and after, the pregnancy. As it happened, the result was the birth of twins. These are the first- and second- named applicants/respondents. They are now living with the genetic parents. To all intents and purposes they are all treated as being one family.
3. It might appear that registering the genetic parents as being the legally recognised, parents would be a straight-forward resolution in this case. But this would be to rush to judgment. Even after this Court had heard the ably presented oral arguments, two news stories emerged which demonstrated that, unfortunately, surrogacy can raise difficult issues. It is necessary only to present the outline of both accounts here without sensationalism. The first report related to a twin baby boy with Down’s syndrome who was “left behind” by his Australian commissioning parents with his Thai surrogate mother because, it was said, of a number of medical problems.
4. The second case concerned another commissioning couple, where it was suggested, an Australian commissioning father had engaged in sexual misconduct with the surrogate children, in circumstances where the Thai surrogate mother had been ambivalent about the commissioning parents taking the twins to Australia.
5. Such cases are not unique. They demonstrate some of the issues which can, sometimes, arise with surrogacy. In this appeal, the adult parties entered into an altruistic arrangement amongst the adult parties. There was no commercial dimension. But the question arises as to whether the facts of this case be segregated from others in law? This judgment seeks to approach the questions arising, primarily at the level of statutory interpretation, within the parameters argued in the appeal.
6. I differ from my colleagues in the majority in that, I would have been disposed to grant an alternative order, as considered later in this judgment, which might further vindicate the children’s rights, as far as is practicable in accordance with the Constitution. That proposed order would be that the matter be remitted back to the High Court in order to consider whether the third- and fourth-named applicants be appointed legal guardians of the first- and second-named applicants. This could be as a preliminary to adoption procedures. At the High Court hearing now under appeal, counsel for the State indicated that the authorities would co-operate in expediting such a course of action. The effect of such orders and procedures, if completed, would be that, under Irish Law, the twins, would for all purposes, have been regarded as their genetic parents’ children.
7. Having outlined the events following the birth of the children, this judgment addresses the question as to how the statutes, said to inhibit the genetic parents’ rights, are to be construed, under Irish law. Thereafter the judgment considers how, exceptionally, the rights of the children might be vindicated in accordance with law in this unique case.
8. For clarity, references to “the applicants” will be to the genetic parents, save where the context otherwise clearly indicates. The first-named respondent will be referred to as the “An t-Ard Chláraitheoir”. The notice party will be referred to as “the birth mother”, the Equality Authority and the Irish Human Rights Commission as the “amici curiae”.
Events Subsequent to the Birth of the Children
9. Subsequent to the twins’ birth, the question arose as to genetic father and the birth mother being registered as the parents of the children. This was because, in the law of the State, it was the birth mother who was recognised as being “the mother” for registration purposes. This approach, hitherto universally applied, was in reliance on a legal principle, expressed in the Latin terms mater semper certa est, that is, the (identity of the) mother is always certain. This is to be contrasted with the position of paternity, which, traditionally, was established by a presumption arising from marriage to the mother of the child.
10. Subsequent to the decision by An t-Ard Chláraitheoir, the genetic parents’ solicitor wrote, seeking to have their clients registered as being the twins’ parents. An t-Ard Chláraitheoir refused to do this on the basis of legal advice. The genetic parents then sought to “correct” the entry in the register. They were informed that the matter could not be treated as being an “error of fact”, pursuant to the provisions of s.63 of the Civil Registration Act, 2004, which would allow for such corrections and that there was no legal basis to treat the entry as incorrect. The operation of the 2004 Act was extensively considered by McKechnie J., then in the High Court, in Foy v An t-Ard Chláraitheoir, Ireland and the Attorney General  IEHC 116.
The Public Interest and Public Policy Aspect of the Case
11. The issue of interpretation in this case does not concern just one adult couple, the twins and their particular situation. All these interests and rights fall to be determined, insofar as the issues are of statutory interpretation. In that process of interpretation there can be a substantial public policy dimension. The implications of some elements of the case would have consequences well beyond its apparently confined facts. While surrogacy itself does not fall for consideration here, the subject raises concerns in some quarters as being both exploitative of women, (surrogate mothers), the absence of legislation in some countries, and also because it infringes children’s rights, an issue considered later in this judgment. Our courts will be asked to address further issues in this area in the future. The gravity, range and policy dimensions of these questions are such that they might be more appropriately addressed in the Oireachtas, rather than the Courts.
12. Some indication of the complexities arising from the general issue here can be gleaned from the fact that, after the High Court judgment, which found in favour of the applicants herein, the then Minister for Justice and Equality drafted and produced a draft Bill seeking to address questions arising from that judgment. It is not the function of this Court to provide advisory judgments on proposed legislation. However the very complexity of the matters addressed in the draft, insofar as it addressed surrogacy, showed the ethically profound nature of the questions engaged both before and after birth. This judgment expresses no view relating to the constitutionality of any intended legislation. The question which the Court is asked to address, rather, is how, the term “mother” in present legislation, now already in effect, should be interpreted.
The Main Issue
13. The main issue in the case derives from the fact that registration of birth under the Civil Registration Act 2004 is applied, according to the “mater semper certa est” principle. The applicants do not say that the application of this principle in other circumstances is, unreasonable, or arbitrary. But they contend that the 2004 Civil Registration Act should be interpreted so as to allow for their registration as the parents. The Equality Authority and the Irish Human Rights Commission, which both were joined as amici curiae, prepared valuable and thought-provoking submissions. Counsel for both bodies, Ms. Nuala Butler S.C. submits that the refusal to register the genetic parents is an invidious discrimination, prohibited under Article 40 of the Constitution, which, while declaring all citizens as equal before the law, also provides that the State may, in its enactments, have due regard to differences of physical and moral capacity, and of social function.
Relevant Provisions of the Civil Registration Act, 2004 and the Status of Children Act, 1987
14. To fully understand the applicants’ case, it is necessary to consider now the scheme of the legislation under which the register is operated.
15. S. 22(1) of the 2004 Civil Registration Act (“the 2004 Act”) provides:
In that context, the section also makes provision for the registration of both an unmarried father and the birth mother, if both of them so request (s. 22(2)(a)). When the word “mother” occurs in this section, it is always in the context of, and in connection with, the birth of a child and the duty of registration. S. 60 of the Act of 2004 identifies circumstances wherein a registrar may ‘fail’, or ‘refuse’, to register the appropriate details of a birth. The Act allows for a process of appeal against such failure or refusal, identifying an appeals officer for that purpose; and thereafter allowing a further appeal to the High Court. Section 63 of the Act allows an informant to apply, in writing, to a Superintendent Registrar to correct “an error of fact on a register”. This will arise if such a person gives to the Superintendent Registrar such evidence as he or she considers to be adequate to correct the error and a statutory declaration containing the required particulars in relation to the birth concerned. In this case, the surrogate mother was registered as the mother.
“The father of a child who was not married to the mother of the child at the date of his or her birth or at any time during the period of 10 months before such birth shall not be required to give information under this Act about the birth.”
16. The Status of Children Act 1987 permits a Court to make a declaration of parentage. This may be established by blood, or DNA testing. In his testimony to the High Court, An t-Ard Chláraitheoir made clear that, if his office was presented with a declaration as to parentage in favour of the genetic parents pursuant to s.35 of the 1987 Act then he would act on it for registration purposes without further enquiry. Insofar as material, s.35 provides:
Taken together, however can the 1987 and 2004 Acts be interpreted so as to encompass the situation of surrogate genetic parents? The applicants say that to apply the mater semper principle to exclude them is to apply the legislation unlawfully, in that the terms of the two Acts taken together should not prevent their being registered as parents. Under s.19 of the 2004 Act, the parents of a child must register the birth of the child not later than 3 months after the birth. To do this, the parents must give a registrar the “required particulars” of birth to their “best knowledge and belief” s.19(1)(b)(ii). Those particulars must include the date and place of birth, the forenames, surname, birth surname, address and occupation of the mother, and even the birth surname of the mother’s mother. (See First Schedule to the 2004 Act). The Act identifies the parents of a child as being “qualified informants” in relation to the birth of the child (s.19(6) the Act of 2004).
“35.(1) (a) A person (other than an adopted person) born in the State, or
(b) any other person (other than an adopted person),
may apply to the Court in such manner as may be prescribed for a declaration under this section that a person named in the application is his father or mother, as the case may be, or that both the persons so named are his parents.”
17. To achieve the outcome sought, in the appeal, the applicant parents must demonstrate a legal rationale whereby the legislation should be interpreted and applied so they can be registered. Mr. Gerard Durcan, S.C., for the applicants argues that the relevant legislation does not in terms require, that parents, or in particular a female parent, should necessarily be the birth mother. He is supported in this by counsel for L.L, who is the surrogate mother who is the notice party. In fact, Mr. Durcan S.C. submits, there are legal authorities which recognise the blood or genetic link between parents and children as being a factor in determining parenthood. He contends that his clients are entitled to be registered as “the parents”. One immediate consequence of such registration would be, of course, to raise the question as to what is the status of the birth mother? As the case histories mentioned earlier, (and later) in this judgment, show, these are not at all easy questions, and would require a form and range of analysis not easy to perform in an adversarial court setting, where the arguments are largely confined to the facts of the case.
18. Counsel for the applicants point out that under the 1987 Act, there is power for a court to direct the use of blood tests for the purpose of determining whether a person named in an application is, or is not, a parent of the child whose parentage is in question. These tests operate by ascertaining the presence or absence of shared inheritable characteristics as between the two people concerned. This Court has already determined on the lawfulness of directing DNA tests in addition to blood tests (see JPD v. MG  1 I.R. 47). As McCarthy J. pointed out in his judgment there:
The Applicants’ Core Submission
19. The applicants’ argument in this appeal is persuasively made. It differs from the High Court judgment somewhat, however. While not challenging the trial judge’s findings on the scientific evidence, the applicants’ submissions are, for this appeal, predicated more on a process of statutory interpretation, without abandoning a claim based on invidious discrimination. Counsel submits that, until the late 1970’s when scientific advances first permitted in vitro fertilisation, a woman who gave birth to a child would inevitably have shared DNA with her child. Self-evidently the mother would share “inheritable characteristics” with a child born by her. However, counsel submits, while this continues to be the case in the vast preponderance of births, it is no longer inevitable. For example, as a result of an in vitro fertilisation procedure, where the egg of a third party is implanted in a birth mother, that birth mother will not, share inherited characteristics with a child whom she bears. Counsel submits, therefore, that, as a matter of fact, the question of who gave birth is, even now, not always determinative of who is the child’s mother. On the one hand, DNA tests may show a pattern of inheritable characteristics. Thus, parental relationship is established. On the other hand, the outcome of such tests might, in some cases, disclose an absence of any shared inheritable maternal characteristics. Were this so, a woman who gave birth to a child would be precluded from being registered as a parent. Thus, a situation might arise where the “birth mother” of a child would not share any genetic connection with her child, despite the fact that she was, in fact, the woman who had given birth to that child. Counsel argues the underlying assumption as to the existence of a necessary link between genetics and giving birth is, no longer a valid one. He contends that, in this case, the relevant provisions of the 1987 Status of Children Act should be interpreted so as to give effect to an, “evidence based”, genetic, or blood link, one which in other contexts is now recognised as establishing parenthood. Such an approach would, of course, run counter to the hitherto universal application of the mater semper principle. What is under consideration here is how, on balance, this Court should interpret the relevant sections of the 1987 and 2004 statutes, which are closely connected. The issue is not “science versus law” but rather how the statutes, as they now stand, should be understood and interpreted.
“The birth of each child is registered under the relevant statute, and the name of the husband is entered as the father of each child; this creates a further presumption that he is the father of each child unless the contrary is proved on the balance of probabilities.”
20. It is now necessary to consider the derivation of the mater semper principle, which is not only applied in Ireland, but in a number of European countries. What is the legal status of this principle?
The Legal Status of the Mater Semper Certa Est Principle
21. Mr. Michael McDowell SC, counsel for the State forcefully submits that the mater semper doctrine is an irrebuttable presumption in common law. Thus, he says, there was no option but to apply the principle on the basis of the legal advice received. It is a matter of law. The legislation, he submits, must always be interpreted in accordance with the mater semper principle. Consequently, he submits that the legislation is not open to some other interpretation.
22. One might pause here to observe that legislative provisions are frequently interpreted and applied in accordance with “canons” or principles of interpretation, some of which are identified in the Interpretation Act, 2005. Although not explicitly referred to in argument, that Act does permit legislation to be construed in the light of “changes in the law, social conditions, technology, or the meaning of words used in the Act … which have occurred since the date of passing of that Act …”, but only insofar as the text, purpose and context permit (see s.6, the Interpretation Act 2005). Section 20 of the Act provides:
However, this does not preclude a Court from on occasion resorting to other legislation in order to clarify how, in the same, or a very similar context, a term has been commonly interpreted.
23. As is the case with many legal maxims, the provenance of the mater semper principle is shrouded in the mists of history. The question of such a distinction did not truly arise, in science or law until the twentieth century. What Mendel, working in Central Europe, discovered about inherited traits in the 1850’s and 1860’s did not become common currency until a process of rediscovery in the early 20th century. There is no doubt that there was a legal presumption that paternity was established by marriage to the mother of a child (see further, International Surrogacy Arrangements 2013 Hart Publications; in particular “Surrogacy in Ireland” by Dr. Maebh Harding). With one exception, adverted to below, we have not been referred to any relevant pre-independence statute carried over in our law by Article 73 of Constitution of 1922 or by Article 50.1 of the Constitution of Ireland 1937. But a legal interpretation dependent on silence, or omission, must necessarily be measured against other provisions, where, by explicit expression or clear implication, the meaning of a term is clear and generally understood. While a term in an enactment may be “updated” to encompass modern developments that may fall within the ambit of such a term, its meaning may not be completely altered by an application of an “updated” construction which was not within the original intendment, or its commonly understood meaning. Neither can the purpose of a provision be altered in this way. An interpretation which will create broad uncertainty, ambiguity or doubt, is to be avoided. Assuming, as a matter of interpretation, that a genetic mother is registered under the present regime, would this entail that a birth mother had no legal status; an indeterminate status; or a status depending on the agreement or actions of surrogates, and on the terms of a surrogacy agreement? The possibility of a child having in law, two mothers (one genetic and one birth), is surely telling. Such a contingency creates uncertainty. The indicia of motherhood found in many other of our statutes, referred to later, relate to pregnancy and child bearing but not, at present, to genetics. I would add that while a statute can be interpreted in accordance with ECtHR jurisprudence, that process of interpretation must accord with established rules of law relating to such interpretation and application (s.2 ECHR Act, 2003). Recent ECtHR jurisprudence described at the conclusion of this judgment allow for a wide margin of appreciation for member states to legislate on, or even against, surrogacy, so far as adults are concerned. The Article 8 and Article 19 rights of children, considered in those judgments, are to be seen in the light of the fact that French law did not provide a remedy for them to be placed in a family unit, even by adoption.
24. By contrast the absence of any statutory provision which specifically recognises the rights or attributes of a “genetic mother” weighs against the applicants’ case. The mater semper principle is referred to by the House of Lords in the Ampthill Peerage Case  AC 547, but not in such terms as to be definitive as to its legal status in our law. It is referred to also in Johnson v Ireland (app. No. 9697/82) (ECtHR 18 Dec, 1986) by the ECtHR Grand Chamber, but again in passing.
25. But as I now seek to explain, the principle of a nexus, or a clear link between birth, pregnancy and maternity is long established, in statute, in case law and, implicitly, in the Constitution itself. In the case of statutes, context and purpose are fundamental to interpretation. An examination of all the extant legislation, in context, shows a legislative purpose which is to provide for certain protections for pregnancy motherhood, and children, either explicitly or impliedly but, in doing so, recognising the status of “birth motherhood”. Underlying the entirety of this appeal is the question as to the purpose of the provisions in question. The applicants say should now be applied, in a manner which should include them. The amici curiae say the application is unjustly discriminatory. However, in interpretation, as well as context and purpose, one may have regard to public policy as expressed in a statute. The purpose of the provisions now considered, the State respondents say, is to identify clearly the holders of rights, entitlements, and duties. Counsel for the State submit this is an area where the public, and the State, has legitimate interest in maintaining clarity, and avoiding doubt.
26. The existence of the mater semper principle, perhaps best seen as an underlying assumption or implied understanding, in law, was recognised in O’B v. S  1 I.R. 316 where Walsh J. observed that the principle applied “in Irish law by reason of the provisions of ss. 1, 7 and 28 of the Births and Deaths Registration Act (Ireland), 1880.” A consideration of those provisions, together with the forms contained in the Schedule to that Act, demonstrates that, while the mater semper principle might not, as argued by counsel for the State, be an “irrebuttable presumption”, it was, nonetheless a premise, or implied meaning, on which references to “mother” was always predicated The sections of the 1880 Act, identified above, deal with the duties of parents or other persons present at birth, and the procedures necessary for the registration of the birth of a child. The actual terms of s.1 of the Act of 1880 impose a duty on the “father and mother of the child” or “the occupier of the house in which … the child is born” and “… each person present at the birth” and “… the person having charge of the child”, to give “to the Registrar within forty-two days next after such birth information of the particulars required to be registered concerning such birth and in the presence of the Registrar to sign the register”. Section 28 of the 1880 Act makes reference to the circumstances in which the Register is not to be evidence of paternity, unless it was signed by some person present at the birth of the child. The implied meaning of the term “mother” is clear from these.
27. But this is not the sole relevant legislative provision. The meaning of a term in one statute will not always have the same meaning in another statute. But without going so far as to hold that statutes next considered are also in pari materia, (on the same subject matter), there must come a point where, the universal identification or symmetry of common attributes or the same meanings in a variety of statutes has a real significance beyond the scope of any one statutory meaning or definition (Barras -v- Aberdeen Steam Trawling & Fishing Co.  AC 402). This principle of interpretation will apply, unless the statutory context indicates otherwise.
28. The provisions of s. 22 of the 2004 Act, (already referred to earlier) actually contain the word “mother” on some eight occasions, and always in the traditionally understood context involving a woman giving birth. This does not sit easily with the appellants’ argument based on an application of a “genetic identity” criterion. The argument hinges also on a close interrelationship between the 1987 Status of Children Act and the 2004 Civil Registration Act.
29. In a less enlightened era, the Illegitimate Children (Affiliation Orders) Act, 1930, defines the term “mother” in the following terms:
A linkage between motherhood and birth in similar terms is found in s.7 of the Legitimacy Act, 1931.
“1. In this Act -
(b) the word “mother” means any of the following persons who is with child or has been delivered of an illegitimate child, …”. (emphasis added)
30. Even at a time after the possibility of in vitro fertilisation was thought of, the same implied understanding of “mother” is to be found in statutory form. To take further examples, s.28(2) of the Social Welfare (Consolidation) Act, 1981 provides:
31. While it might be said this provision does not actually preclude another interpretation, it is not easy to ignore the statutory juxtapositions of the terms “mother of the child” and “birth of the child”.
“(2) In deciding whether or not to make an order under section 21A of the Family Law (Maintenance of Spouses and Children) Act, 1976 (inserted by the Status of Children Act, 1987), in so far as any such order relates to the payment of expenses incidental to the birth of a child, the Circuit Court or the District Court, as the case may be, shall not take into consideration the fact that the mother of the child is entitled to maternity allowance.”. (emphasis added)
32. The link between motherhood and birth is also to be found in the Maternity Protection Acts, 1994 to 2004, designed and intended to protect the rights of both pregnant employees, and employees who have given birth. Section 16 of the 1994 Act (as amended by s.10 of the Act of 2004) defines “the mother” as a person “who has been delivered of a living child …” The protection extended by the legislation again links or connects pregnancy, birth and motherhood (see also s.6 of the 2004 Act).These close associations are difficult to ignore.
33. Reverting then to the 1987 Status of Children Act, that statute also contains a number of references showing the same legislative intent and intended meaning of the word “mother”. Section 5 of the 1987 Act contains an amendment to the Irish Nationality & Citizenship Act, 1957. That amendment provides that in relation to the Act of 1957, references to father, mother or parents includes, and shall be deemed always to have included, “the father, mother or parent, as the case may require, who is not married to the child’s other parent at the time of the child’s birth or at any time during the period of 10 months preceding the birth”.
34. Elsewhere, the Status of Children Act, 1987 makes provision in relation to the maintenance of a child. This provision includes claims against a parent which may be made under s.15 of the 1987 Act, (effectively a duty on the father to maintain the mother) to make payments of “a lump sum in respect of the expenses for the birth or funeral of a child …”
35. In fact, other provisions of the 1987 Act itself create a difficulty for the construction for which the applicants’ argue. The same strong implied contextual linkage between conception, gestation and birth emerges in s.46 of the Act, in the context of identifying procedures for registration of births of children. This section provides:
36. These references are to be seen in light of the references to s.22 of the Civil Registration Act, 2004 referred to earlier in this judgment. While the two acts may not be in pari materia, they are certainly very closely associated on the interpretative issues arising in this case.
“(1) Where a woman gives birth to a child –
(a) during a subsisting marriage to which she is a party, or
(c) within the period of ten months after the termination, by death or otherwise, of a marriage to which she is a party,
then the husband of the marriage shall be presumed to be the father of the child unless the contrary is proved on the balance of probabilities. …”
37. Establishing the applicants’ claim, therefore, is not easy, having regard to this commonly used meaning or understanding of the term mother as being a woman who, having become pregnant gives birth to a child. It is self-evident that, in day to day reality, the role of a mother goes far further than this. But for the purposes of this discussion, it is the connection with birth which is material, in discerning the context, intent and purpose of the provisions in question. No other contrary interpretation appears in any Act of the Oireachtas. To my mind, in the light of this widespread usage and meaning, it is not possible to say that we are dealing here with a term “mother” as specifically defined for a particular purpose in enactments. The meaning imparted is too universal to allow for such a conclusion. Clearly, in the case of adoption the status of mother, otherwise generally understood, is altered by statute and procedure intended for that purpose.
Provisions of the Constitution
38. The proposition advanced by the applicants must also be seen in light of the provisions of the Constitution which deal with women and the family, even though, just as in statute law, one cannot find the mater semper principle itself explicitly stated in constitutional terms. The issue in question simply was not within the contemplation of the drafters of the Constitution in 1936/1937.
39. However, Article 40.3.3 provides that:
Even accepting that the meaning of the term “mother” is to be seen within the scope of that Article, the implication is nonetheless clear.
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” (emphasis added)
I am not persuaded that the constitutional provisions on the family (Article 41) or education (Article 42) assist in the process of interpretation.
Interpretation by the Courts
40. The prior, generally understood, meaning of mother is to be found in recent authority interpreting the meaning of Article 40.3.3.
41. In Roche v. Roche  2 I.R. 321 this Court addressed the constitutional and legal status of frozen embryos, specifically in the context of whether a frozen embryo could constitute an “unborn” within the meaning of Article 40.3.3. Murray C.J. observed in the course of his judgment that:
He added that:
“Of course the gestation and birth of a child is inextricably and humanly linked to the mother and its development in the womb.” (at page 348)
42. To similar effect, Denham J., (as she then was), observed that:
“the evolution post implantation of the embryo to the birth of a child remains inextricably linked with the mother as indeed it is in the normal process of conception, implantation and birth.”
43. The policy considerations arising from “alienation”, or handing over a child to another can be discerned from the terms of Article 42.1 of the Constitution which speaks of ‘inalienable’ parental rights. That concern can be seen in the State regulation of adoption, by statute.
“After the implantation the mother has carriage of the embryo and the embryo enters a state of “unborn”, there is an attachment between the mother and an unborn. It is that attachment which gives rise to the relationship addressed in Article 40.3.3 where the state acknowledges the right to life of the unborn and the due regard to the equal right to life of the mother. The interpretation of the “unborn” arising after implantation is a harmonious interpretation of the Constitution consistent with other rights under the Constitution.” (at page 373)
44. The High Court judgment contains reference to the absence of material before that court as to the existence of a European consensus on the question of surrogacy. This Court has been informed that seven member states of the European Union have a complete prohibition on surrogacy (Bulgaria, France, Germany, Italy, Malta, Portugal and Spain). Eight more prohibit commercial surrogacy. Greece is the only E.U. member state which allows for altruistic surrogacy arrangements.
45. In summary, the balance of legislative tradition weighs heavily in favour of the proposition that, unless a contrary intention is expressed, in legislation, the birth mother should be regarded as being “the mother” of the child. These considerations of purpose, intent and context weigh significantly against the construction of the 1987 Statute now urged on behalf of the applicants.
Analogies with Adoption Issues under Legislation
46. The child’s welfare principle also lends itself to a clear “purpose and intent” analysis of the term “mother”. There is a state interest in clearly identifying parental duties towards children in an area where complex problems can arise. The case of N v. HSE (the Baby Anne case)  4 I.R. 344, revealed the difficulties which can emerge in circumstances where a natural mother, having placed her child for adoption, reassessed her decision, and later, having married the father, successfully commenced proceedings for the return of the child from the potential adopters. In Dowse v. An Bord Uchtala & The Attorney General  2 I.R. 507, the parents having identified a suitable child in Indonesia adopted that child under Irish law. But later, when the adoptive mother herself became pregnant, the couple relinquished the care of the adopted child. It is not hard to envisage analogous cases in the area under consideration.
47. These reminders, and the international cases cited at the beginning of this judgment, show the State interest in regulating this sphere of human activity relating to adoption, and, a fortiori, surrogacy. The applicants’ argument, as it stands, does not readily allow for such a state role or regulation either by statute or the courts. In so far as it may be material, it is worth observing that, in the neighbouring jurisdiction, the view was taken that the first step in recognising that a relationship could be created by assisted reproduction was by legislation (see s. 27 Family Law Act 1987, and the Human Fertilisation and Embryology Act 1990).
Blood and Genetic Link
48. In the light of these considerations, it is necessary now to turn to the jurisprudence of our courts in addressing the question of the blood or genetic link upon which the applicants seek to rely. It is true, of course, that there have been a number of judicial pronouncements on the question of such links. But, it is necessary to point out such dicta arise in a quite different context.
49. In law, as it is frequently pointed out, “context is all”. Some of the observations on “the blood link” cited on behalf of the applicants relate to the establishing of paternity or to the access rights of a sperm donor, to a child, in the custody of a lesbian couple. It is quite true that in that case, JMcD v. PL  2 I.R. 199, Fennelly J. observed that:
50. There are numerous similar references both in the context of paternity and maternity in the judgment of this Court in the adoption case of N v. HSE, referred to earlier. But these are far from providing clear authority for the proposition that a principle of interpretation of long-standing, should now, and in a different context, be abandoned, or treated as being of no effect. It is, no doubt, true, as Fennelly J. observed in JMcD, that, even the restrictive role of a sperm donor, did not “prevent the development of unforeseen but powerful paternal instincts.” But what was in question in that case was the distinct role, of fathers, as compared to the role of mothers. Other such observations, and to the same effect, do not relate to the position of mothers as generally understood, in the context of, and their relationship, to child-bearing.
“The blood link, as a matter of almost universal experience, exerts a powerful influence on people.”
51. Quite often discussions revolve around the notion of a “right to a child” i.e., the right to have, or to rear a child or a family. But sometimes such discourse can obscure the rights of the child. On behalf of the Equality Authority Ms Nuala Butler SC in her submissions adverted to these very important rights. The following usefully re-illustrate some of the policy considerations which may arise; by Article 8 of the United Nations Convention on the Rights of the Child (UNCRC), state-parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations. The same Article provides that parties are pledged to provide appropriate assistance and protection with a view to establishing identity speedily when a child is deprived of some or all elements of his or her identity. Article 9 UNCRC contains guarantees to prevent a child being separated from his or her parents, save when such separation is deemed necessary, and in the best interests of a child, by a competent judicial authority. When such a process might be necessary, all parties should be given an opportunity to participate in legal proceedings and make their views known. Under Article II UNCRC, state parties are to take measures to combat the illicit transfer and non return of children abroad. Article 21 of the Convention sets out extensive and detailed requirements in relation to the application of the child’s “best interests principle” in adoption, including safeguards and adoptive counselling. Adoption placement is not to result in improper financial gain for those involved in such procedures. If these principles are broadly applied in the case of adoption, the same question may arise in the case of surrogacy. Moreover, the blood/genetic link involves not only “genetic” fathers and mothers; but a range of other potential family connections which a child may wish to establish. While these observations might appear somewhat perceptive to the task of interpretation of the word “mother” they demonstrate the very broad policy considerations which arise, which show that a narrow ‘value neutral’ interpretation of the term “mother” in the provision is not feasible.
52. The “mater semper” maxim refers not only to rights, but to duties. The applicants’ argument begs the question as to who, precisely, would owe a duty of protection, care, maintenance and education to children, in a maternal context? This is not an area where ambiguity or doubt is desirable, especially in circumstances, where, the possibility exists of disputes between the rights of genetic parents against birth mother, or a rights-conflict where just one parent is a donor of sperm or gamete; or a case where neither of the commissioning claimants has any genetic link with the child. The need for legislation is clear. It has been clear since the mid-1990s when Irish academic scholars and highly experienced practitioners in family law drew attention to the problem.
The High Court Judgment Considered in More Detail: Equality
53. This section of the judgment addresses in more detail the submissions of the Equality Authority and the Irish Human Rights Commission in the context of the High Court judgment which was based on a finding of invidious discrimination. These submissions were particularly valuable in placing the quite narrow issue here in a broader context. Can the applicants’ argument successfully be framed in terms of Article 40.1 of the Constitution? That Article, while recognising that “All citizens shall, as human persons, be held equal before the law”, adds “This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
54. The trial judge based his findings on a number of sequential steps. He noted that DNA chromosomal testing can be scientifically determinative of parenthood. He acknowledged that, while the input of a gestational mother to an embryo and foetus was to be “respected and treated with care and prudence”, nonetheless the children’s predominant feature was their genetic material. On this basis, he concluded that a failure to recognise the role of the genetic mother, (and father), would be an “invidious, irrational, unfair” discrimination contrary to Article 40.1. He considered that the position of the genetic parents in this case was to be recognised on the basis of equality rights as guaranteed under the Constitution. However, the issue of the alleged discriminatory effect of the statutes must primarily be seen through the prism of the Constitutional jurisprudence of the courts.
55. The starting point of the High Court judge’s reasoning on this question was the High Court judgment in S v. S  I.R. p.67. The case concerned the long established irrebutable presumption of paternity based on marriage to the mother of a child. The question was whether this presumption should continue to subsist when the question of paternity is required to be established as a necessary aspect of the administration of justice. In the High Court, O’Hanlon J. held that the presumption had not survived the adoption of the 1937 Constitution. On this Abbott J. commented:
56. The difficulty that arises from this critical passage is that it focuses on the individual circumstances of the case before this Court on appeal. The consequence of the finding would go far beyond the facts of this case. To take one example; how would the considerations alter, if, for example, what was in question here had been a commercial transaction, where there was either a male sperm donor or, alternatively, a female gamete donor? In either circumstance there might be, at least partly, a genetic link, or, possibly, no such link. The procedures and series of transactions for surrogacy might not necessarily involve Irish citizens, or take place in Ireland. Such procedures might involve a donor input where that donor may not be readily traceable, either by the commissioning parents, or the Irish State, or both. Again, this emphasises that an “evidence based” approach is not, in fact, “value neutral”. Circumstances will arise where a child might have a clear interest, or even a right to information about his or her genetic make-up or parenthood. While the trial judge observed that the best interests of the child will be best served by “an enquiry of the genetic interests”, will this always be so?
“The judgment of O’Hanlon J. in S v. S relating to the irrebuttable presumption in certain cases relating to paternity in marriage, is ample authority to enable the court to conclude that the presumption of mater semper certa did not survive the enactment of the Constitution insofar as it applies to the situation post IVF. To achieve fairness and constitutional natural justice for both the paternal and maternal genetic parents, the feasible enquiry 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 under the Act of 2004. The conclusion does not raise the consideration of the best interests of the child which in most cases, if not in all, would be best served by an enquiry of the genetic interest.”
57. In seeking to emphasise the “neutral character” of the statutory scheme, the counsel for the amici curiae submits that parturition can no longer be the exclusive proof of motherhood which protects the status and role of mothers, their relationships with their children, and affords protection to children by legal recognition of that relationship. It is said that this conclusion is both supported and required by the constitutional principle of equality deriving from article 40.1 of the Constitution.
58. It is stating the obvious to point out that, in this context “differences in capacity” between mothers and fathers may be of “physical capacity” if not of “social function”. Fatherhood is achieved by a genetic process. In motherhood, there must be, at least as technology and science currently stands, both a genetic, and a gestational process.
59. Counsel for the amici curiae contends that, in the case of an act of the Oireachtas which evinces no intention to discriminate between persons to whom that statute applies, such discrimination cannot be introduced by the administration of that act (Purcell v Attorney General  3 IR 287). But as outlined earlier, such an intent is, in fact, discernable from the scheme of the legislation, by virtue of the specific, identified role and attributes of motherhood to be found in the statutes referred to earlier. The Constitution can not always provide for perfectly equal treatment between all citizens. It must, on occasion, have regard to inherent differences of physical and moral capacity and of social function. The judgment of this Court in MD (a minor) v. Ireland  1 I.R. 697 concerned different criminal liability for young males and females for sexual offences. Certain observations made in that case are nonetheless material, and may be taken as statements of a more general principle, rather than confined to the facts of that case. On these, Denham C.J. pointed out:
The Chief Justice continued:
“ The second sentence of Article 40.1 recognises that human persons have or may be perceived by the Oireachtas to have "differences of capacity, physical and moral, and of social function".
“Some of these differences, particularly of capacity, are inherent, most obviously in the case of the sexes. It is axiomatic that only a woman can become pregnant. Thus, the Maternity (Protection) Act 1994 and the Maternity Protection (Amendment) Act 2004 apply to women, although a father is allowed to take time where a mother has died. Laws prohibiting discrimination on the grounds of pregnancy have justifiably applied to women.”
60. While these views were expressed in the context of this Court holding constitutional the provision that a female child under the age of 17 years should not be guilty of an offence under the Criminal Law (Sexual Offences) Act, 2006, the logic and application of the observations extends equally to the issue now under consideration.
“ It follows that laws such as these are not an example of the State holding men or women respectively unequal before the law. It follows also that the first and second sentences of Article 40.1 should not be treated as if they were in separate compartments. It is not correct to look at a law to see if it offends against the first sentence before turning to the second sentence to seek justification. The second sentence is concerned with what the first sentence means.”
61. The judgment in S v. S now relied on by analogy had a powerful policy dimension, that is, the administration of justice in the courts. It was in the interests of justice that paternity should be established as a matter of certainty. O’Hanlon J. had to decide whether paternity should be determined by the presumption arising from marriage to the mother. But at the level of constitutional principle this case hinges on the distinct, and not analogous, roles of fathers and mothers in procreation.
62. I am unable to accept, therefore, that the “paternity presumption”, which was held to constitute invidious discrimination in the case of S v. S, applies in the same way in the instant case. It would not be to compare like with like. An over-rigid but not always apt analogy can lead to an incorrect conclusion in law. The fact that the roles of men and women in child-bearing are obviously distinct means that one cannot simply take a principle applicable to one situation and apply it in another quite different context. In law, as in science, history and logic, analogies can be deceptive. This case is no exception.
Is There an Invidious Discrimination?
63. That Article 40 cannot be a guarantee of absolute equality was emphasised in the recent judgment of this Court in Fleming v. Ireland  IEHC 2. Necessary differentiation can inevitably arise by reason of distinct human attributes. In analysing discrimination, it is necessary to enquire whether the distinction which a law makes between citizens is rational; that is, can it be rationally justified? Among the categories of potential differentiation calling for close scrutiny are race, religion, gender, or nationality. But, as Denham C.J. pointed out in MD, a distinction based on gender may be so closely related to the very nature of gender itself that it is justified. Can it be said the existence of the “mater semper” principle “invidiously” discriminate against the genetic parents?
64. A court must enquire whether the application of the law in question has a discriminatory intent. The fact that a law has an “impact” on a person coming within a particular category does not per se indicate invidious discrimination. The question is, rather, whether the provision has a discriminatory effect under one of the headings where objection might legitimately be raised? In Gilligan v. Ireland  IESC 1 the following observation is made:
65. It cannot be said that the manner in which the registration system operates, in the 1987 and 2004 Acts is arbitrary, random or disproportionate in its effect (see Cox v. Ireland  2 I.R. 503). I would, therefore, disagree with the submission of the Irish Human Rights Commission. The submission is based on the constitutional right to have a family. This case does not concern the right to beget children, a matter considered by Costello J. in Murray v. Ireland  I.R. 532. Obviously, that right has some bearing on the question at hand. But the fundamental question here is the administration of statutes concerning declarations of parenthood and the registration of births, different questions from those in Murray v. Ireland. The manner in which the Register is operated under both the 1987 and 2004 Acts, is not invidiously discriminatory; but rather is, in fact, focused on a legitimate constitutional and legal purpose, that is, the clear identification of parents who, inter alia, owe legal duties to children. The fact that a law impacts on a particular person or category of persons, in a particular way, is not, per se, indicative of invidious discrimination on the part of an official operating and applying that provision with a legitimate purpose. An analysis based on purpose and intent is again relevant: the purpose and intent of the legislation is the identification of the rights and duties of maternity in accordance with well-understood criteria. It is true that no section of any Act prohibits surrogacy per se. But can it then be said that An t-Ard Chláraitheoir is under a duty to register the applicants on the basis of the genetic results?
“49. The litmus test is whether this classification made by the Oireachtas is for a legitimate legislative purpose, is relevant to its purpose, and treats members of each class fairly. The fact of classification always involves a degree of exclusion or inclusion; whether that inclusion is legitimate can be measured by relevance to its purpose, fairness and the category of classification.”
66. The “mater semper” principle seeks to achieve certainty. Were it dis-applied what other criteria would be adopted in applying the legislation as it now stands? Would the principle be replaced in an individual case by genetic criteria which might, in fact, arise in the range of very variable circumstances described earlier, and where many couples who enter into surrogacy arrangements would not, in fact, come within the “genetic test”? Such a procedure would of course require DNA or blood evidence to be provided on each registration. Would this evidence always be available to the commissioning parents from a surrogate? And should a “genes based” application of the statutes apply in the case of every birth mother henceforth, even though, currently, the vast majority of birth mothers are also the genetic mother? Even raising these questions shows that what would be required would be substantial amending legislation. The argument must be seen as contingent on an interpretation that suits a very small category of persons, even within the realm of surrogacy parents. As the legislation now stands, the dis-application of the mater semper principle would lead, inevitably, to the result that the twins would have not one, but two mothers, that is to say, the birth mother and the genetic mother. Such a consequence would create uncertainty. The law leans against interpretations which create uncertainty or ambiguity. In situations where some uncertainty lies on both sides of a question, a court should lean towards the interpretation favouring greater certainty. In summary, therefore, I am not convinced that there is an “equivalence” between the establishment of paternity, such as arose in S v. S, and the establishment of maternity.
The order proposed - Vindicating the Children’s Rights
67. I differ from my colleagues in the majority in that, in my opinion, a number of steps could be taken further to secure the constitutional and legal position of the first- and second-named applicants. The evidence in the High Court was to effect that the third-and fourth-named applicants had, for their own reasons, chosen not to pursue any other legal or administrative remedies, such as either adoption or a guardianship application. It has not, in fact, been suggested that there would be any obstacle to pursuing either course. Were the children adopted, they, and their genetic parents, would, for all purposes, be regarded as a constitutional family. The procedure would ensure the full lawful transfer of all parental rights from the surrogate mother to the third and fourth applicants, and confer on them and the children, all the status of such a constitutional family. Guardianship and adoption are, therefore, available remedies which apparently have not been fully explored, still less exhausted.
68. The power of a court to act on the basis of its inherent jurisdiction must be exercised sparingly and only in exceptional cases which are not addressed by statute. In my view, this is such an exceptional case. I would have been disposed to remit the matter to the High Court to determine whether, in accordance with its inherent jurisdiction, and in vindication of the children’s rights to be reared and educated in a family unit, and in order to eliminate the risk of any other adverse legal consequence of their present uncertain status, the third and fourth-named applicants should first be appointed as the twins legal guardians, as a preliminary step to adoption. I am not convinced that it would be appropriate to appoint guardians by an order under s.6A of the Guardianship of Infants Act, 1964, which addresses guardianship generally by statute. That provision would allow for the appointment of an unmarried father as the guardian of a child. Section 8 of the 1964 Act allows the appointment of “any person” as a guardian, but where a child has no guardian. But the twins have one parent who is their biological father, and who can be their legal guardian. The 1964 Act does not, however, give an express power to appoint the fourth-named applicant (the genetic mother) as a guardian of the twins. Where the terms of a statute are fully clear, they cannot be construed otherwise. But the statute does not address a situation such as this one. The power of the courts should be sufficiently ample to vindicate the rights of children which arise under the Constitution (DG v. Eastern Health Board  3 I.R. 611). MR and DR do have constitutional rights to be parented, and to be reared and educated where possible, in a family unit. They have, at minimum, a clear interest in having their identities and status established in law. But their rights and interests must be balanced against the broader rights of others, the public at large, and both adults and children, all of which are engaged here. These broader considerations militate against a resolution of the case which would extend the recognition of the twins’ rights at the cost of the right of the State to regulate matters in the public interest, or the creation of uncertainty where it is unnecessary. No legislative intention precluding reliance on inherent jurisdiction appears in the 1964 Guardianship of Infants Act or its amendments. The twins should, in my view, be entitled to enjoy rights on the same basis as other children. The legitimate State interest in the policy questions identified earlier in this judgment may be protected by supervision and review by the High Court in this exceptional, indeed unique, case.
The Requirement for Legislation
69. I would make two final observations which are necessarily obiter dicta. This appeal was unique in that, between the time of the High Court order and this appeal, the then Minister for Justice produced a draft Bill which was placed before the Oireachtas, inter alia, addressing surrogacy (see General Scheme of Children and Family Relationships Bill, 2014). These questions should not be put “on hold”. Some of the issues which arose in this case will, in some other guise, arise again soon. Science does not stand still, especially in exploring the frontiers of human existence by use of assisted human reproduction. The human situation in this case, and others, renders it incumbent on the legislature to attempt to address these questions.
Rights Under the ECHR
70. I would also observe that the submissions of the amici curiae addressed a range of ECHR judgments The Court’s attention was drawn to judgments on surrogacy questions pending in the ECtHR. Subsequent to this appeal, that court pronounced judgment in three cases on the subject, vis. Mennesson v. France 651952/11, Labasse v. France 65941/11 and D and R v. Belgium 29176/13). While the facts of the Belgian case differ from those in this appeal, each judgment distinguishes between the interests of commissioning parents and the rights of children born of surrogacy arrangements. Each judgment emphasises the rights of member states to provide in law for the regulation of surrogacy.
71. In the two French cases, the relevant sections of the ECtHR held that there was a wide margin of appreciation, whereby member states might properly regulate the issue, even by laws precluding surrogacy agreements entirely. Both judgments bear some striking resemblances to the circumstances of this appeal. The issue was whether the French authorities could, under French law, register the births of twins who had been born arising from a surrogacy arrangement made in the United States and where the commissioning parents had been recognised in law there as being the parents of the children. Here, the issue is fundamentally one of statutory interpretation. However, the judgments resonate to a degree with the situation in the instant appeal, in addressing the interests of commissioning parents in a manner distinct from the rights of children. French law did not even permit surrogate parents to adopt children born of a surrogacy agreement. Such agreements were actually a criminal offence. However applying the “best interest” principle, the ECtHR held that it could not be in a child’s best interest to deprive him or her of a family tie, when the biological reality of that tie was established, and the child and the parent both sought recognition of that link. Thus, the ECtHR held that, by completely preventing the recognition and establishment of children’s legal relationships with their biological father, the French State had overstepped the permissible margin of appreciation. The ECtHR held that the children’s Article 8 ECHR rights to respect for their family right had thereby been infringed. By way of contrast, however, the Court observed that, subject to the terms of Article 8, there was no prohibition on a member state legislating against surrogacy insofar as such legislation was in accordance with the law, and necessary in a democratic society, in the circumstances outlined in Article 8.2 ECHR.
72. For the reasons outlined therefore I would allow the appeal, and reverse the declarations granted in the High Court, I would however, have remitted the claim to the High Court on the question of appointing O.R. and C.R. as guardians of the first- and second-named applicants, M.R. and D.R..