THE SUPREME COURT
[Appeal No: 263/2013]
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 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-Árd Chláraitheoir, Ireland and the Attorney General
The Equality Authority and the Human Rights Commission
Judgment of O’Donnell J. delivered the 7th of November 2014
1. This case involves a couple, the third and fourth named applicants, who are married, and who wished to have children. The fourth named applicant was diagnosed with a syndrome called MRKH when she was eighteen years old. As a result of this condition she does not have a uterus and therefore cannot carry a pregnancy. She does have fully functioning ovaries and is able to produce ova. Accordingly the third and fourth named applicants investigated the possibility of surrogacy arrangements. During this process of investigation the fourth named applicant’s sister (the notice party) agreed to act as a surrogate and ultimately all relevant steps in this case occurred in this jurisdiction through the medium of a private clinic providing fertility treatment. The fourth named applicant and her sister underwent the hormone treatment involved in in vitro fertilisation (“IVF”). The fourth named applicant had to take medication to stimulate her ova for retrieval and her sister had to undergo treatment to prepare her body for pregnancy. Ova from the fourth named applicant were fertilised by sperm from the third named applicant and implanted in the uterus of the notice party. The first attempt at implantation was unsuccessful but a second attempt in March 2008 resulted in pregnancy. The notice party gave birth to twins, the first and second named applicants, who were taken home and cared for by the third and fourth named applicants as their family. On the birth of the twins, the third and fourth named applicants and the notice party sought to have the fourth named applicant registered as the mother of the twins (the third named applicant being registered without difficulty as the father, because fatherhood can be acknowledged). However the first named respondent/appellant, the Chief Registrar for Births, Marriages and Deaths, refused on the basis that the registration system was obliged to register the woman who had given birth as the mother of the children born. Accordingly, the notice party was registered under protest as the mother on the birth certificates, and an application was brought to correct the register. Again, this was refused by the first named respondent/appellant, and these proceedings were commenced seeking a declaration that the fourth named applicant is the mother of the twins, and accordingly entitled to be registered as their mother.
2. For ease of identification and reference, and without attributing any legal significance thereto, and indeed without intending any offence, I will in the course of this judgment hereinafter refer to the fourth named applicant as the “genetic mother” or “commissioning mother” and to the notice party as the “birth mother” or “surrogate mother”. The legal issue in this case arises because developments in science mean that it is now possible that the female role in conception, pregnancy and childbirth, which for women fortunate enough not to face reproductive problems is a single process, can now be separated and performed by two or more persons, in this case the genetic mother and the birth mother.
3. While this case is focussed upon a difficult question of the law of registration of births, an area which rarely comes before these courts, it clearly touches upon important and fascinating questions of ethics, science and law. A court must address and decide issues properly coming before it for adjudication. But for reasons which I will address later in this judgment, it is also important that the Court focus upon and determine only those issues which are necessary to be determined. It is, I think, useful therefore to remind ourselves at the outset that this case does not raise any question of the enforceability or validity of a surrogacy agreement or the recognition or enforcement here of surrogacy agreements performed in jurisdictions with legislative codes which permit such agreements. Nor does it involve any dispute between a commissioning parent and a surrogate mother and equally clearly it does not involve the question of the constitutional validity of any legislation regulating or even prohibiting surrogacy agreements. Each of these situations involves complex legal issues which must be addressed and determined if and when they arise in the context of facts which may define and illuminate the issue to be determined. But they do not arise here. What this case does involve is a narrow but important point of the law of registration: who is to be registered by the first named respondent/appellant as the mother of the first and second named applicants? The Court has received written and oral submissions from the parties, the notice party and the amici, and I have found them very useful in a broad sense in understanding the background and nuances against which this issue must be determined. However, the issue is and remains a narrow one: under the Irish law of registration, who is entitled to be registered as the mother of the applicant children? Before addressing that question, it is desirable to make some general observations to set the context in which the legal issue raised in this case is to be determined.
4. First, the issue raised in this case arises because of at least two extraordinary but unconnected advances in science which occurred in the late 20th century. The discovery by Crick and Watson in 1953 of the structure of DNA as a double helix was an extraordinary scientific achievement but it was many years before it was possible through further advances to develop practical applications of this discovery. The discovery of DNA, while important in a therapeutic context, has also had a significant impact in the field of testing, and in particular criminal investigation. Until relatively late in the 20th century, blood testing was essentially negative, it was possible in some cases to exclude any connection, but not to positively establish connection. However the realisation that an individual’s DNA is essentially formed at the point of conception and by the provision of DNA from the male and female meant that it was in theory, possible to establish identity and also parental, filial and family connections with a high degree of certainty. Significant as this science was in the field of criminal investigation, its impact on the law of domestic relations might have been relatively marginal. The irresponsible seducer of the Victorian melodrama might no longer be able to gamble on denying parentage and the possibility of hospital confusions and mix-ups at birth might have been reduced, but without the advances in assisted reproduction made in the 1970s, the development of the science of DNA would only have led to a more efficient testing regime to identify persons whose role and status had been understood for millennia: the male/father and the female/mother. On its own the discovery of DNA did not alter those roles. By contrast, the science involved in the first successful birth as a result of in IVF (developed by Edwards and Steptoe) in 1978 was itself relatively simple, albeit discovered after years of frustrating research, and its impact was immediate and enormous. It has been estimated that in the two decades that followed the first successful IVF pregnancies, 40,000 pregnancies were generated using the technique, and it must be presumed for parents struggling with the pain of infertility and who, only a few years earlier would in all probability have been childless. The issue arising in this case flows directly from those two remarkable achievements of science in the late 20th century.
5. Second, despite the advances in the field of assisted reproduction, the enormous impact of these advances on the most intimate parts of human lives, and the fact that assisted reproduction has been provided on a private basis in Ireland for some time now, this is an area which is devoid of legislative guidance. The absence of legislation does not mean an absence of assisted reproduction; rather it means an absence of regulation. Generations of children have now been born in Ireland through assisted reproduction into a legal half world where the only constraints on the process are those imposed by the dictates of a private market and the sense of responsibility of practitioners. Furthermore, Irish society in general has not addressed the important issues that arise in the field of assisted reproduction. In this regard, surrogacy arrangements pose particular problems. It might be recalled that the 1984 Warnock Report in the UK (Report of the Committee of Inquiry into Human Fertilisation and Embryology) into the field of assisted reproduction, which recommended regulation of the field, also recommended against permitting surrogacy arrangements, saying: “it is inconsistent with human dignity that a woman should use her uterus for financial profit and treat it as an incubator for someone else’s child” (p. 45) (see the admirable discussion in Madden, Medicine, Ethics and the Law (Dublin; Butterworths Professional; 2011; 2nd ed.). In addition to those who have ethical or moral objections to the process, there are also those who oppose it because of concerns about the commercialisation and commodification of women’s reproductive organs. Even the limited survey of the position in different states in the world, and particularly in Europe, shows that there are many different possible approaches which require to be considered. Should surrogacy be permitted at all? If it is to be permitted are there any restrictions such as age or marital status on the person seeking it or on the person acting as a surrogate? Should it be available only to those with reproductive difficulties or should it be available to anyone who seeks it for reasons of lifestyle or convenience. Can payment be made to a surrogate for services rendered? If so is there a limit? If it is not permissible to pay the surrogate mother is it possible to make payments to a clinic providing the technical assistance and if so is there any limit on such payments? What is the status of any agreement between the parties? What is to occur if there is a disagreement during the course of the pregnancy arising perhaps from the death of one of the commissioning parents, a separation or divorce, a change of mind on the part of the surrogate or perhaps the detection of significant abnormalities? These are only some of the questions which arise and must be addressed. Alongside each of them is a further difficult legal question: in the event that some regulations are imposed on surrogacy arrangements what is the position when, as inevitably will happen, children are born where those regulations have been breached? If for example, the consequence is that the surrogacy arrangement cannot be recognised or given effect, and the children do not become members of the family of the commissioning parents, then they will, through no fault of their own, exist in something of a new legal limbo. On the other hand, if notwithstanding breach of some or all of the regulations, the surrogacy agreement is enforced, and the children become members of the commissioning parent’s/parents’ family, then the system of regulation may become irrelevant.
6. These are not easy questions. However, and without attributing blame, it is surely wrong that Irish society has not had the opportunity to address these questions and express its views ultimately though the people’s representatives in the legislature. It is also a cause for regret that The Irish Council for Bioethics no longer functions. In a field of rapidly changing science, strong beliefs and stronger emotions, neutral information, thoughtful reflection and interaction between disciplines is invaluable. The absence of legislative guidance is also surely wrong from the perspective of couples struggling with the pain of infertility and the considerable stresses of fertility treatment. They should not be required to become a vociferous pressure group to achieve more general regulation, most of all when the issue involves an intimate matter which few couples would wish to publicise, particularly if it means exposing their children to the possibility of ill informed comment and worse. Finally however, it is surely most clearly and profoundly wrong from the point of children born through an unregulated process into a world where their status may be determined by happenstance, and where simple events such as registration for schools, attendance at a doctor, consent to medical treatment, acquisition of a passport and even joining sports teams may involve complications, embarrassment and the necessity for prior consultation with lawyers resulting in necessarily inconclusive advice. This Court in clear and forceful terms drew attention to the absence of regulation in its decision in Roche v. Roche  2 I.R. 321. The need for legislation is even more urgent today.
7. Third, the absence of legislative action means that citizens will inevitably seek a resolution of their problems through litigation. Courts cannot abstain from determining a legal issue which is properly before a court and which requires to be decided. But this does not mean that the Court can provide a legislative scheme, whether detailed or simple. Instead a decision on a constitutional matter can be a frustratingly binary choice between upholding legislation, or striking it down and leaving a gap which it is for the other constitutional organs to fill. In some cases the consequence of a decision on constitutionality may even limit the options for legislation. In the case of statutory interpretation, a court’s function will be to declare what the law is, rather than what it ought to be. Any such declaration of the law will however inevitably affect other cases. Thus in this case for example, the issue might be said to be whether under the Civil Registration Act 2004 the genetic mother or the birth mother is to be registered on the birth certificates. The choice of one excludes the other and will apply to all cases.
8. Fourth, it may seem strange at one level that this case which touches on so many important ethical and philosophical issues should focus on an issue of registration. The registration of births, marriages and deaths is an important but largely colourless process, necessary in any developed society. Like the census it reflects the Victorian urge to systematise, organise and record. As such it might be said to be an unlikely subject for contention. If for example, a birth certificate is no more than a snapshot in time albeit an important one, and a recording of a fact, then it might reasonably be questioned what difference it makes if the fact of birth is recorded? However the certification process is a method by which the law determines certain status. Sir Henry Maine observed that the development of the law had been a development from status to contract. But that observation, true in many areas of the law, only emphasises the significance of those areas where status remains important: for example, citizenship, birth, parentage, death and marital status including not just whether a person is single, married or divorced but also the definition of those persons who may achieve that status. To a degree, the law and society assumes that status follows from or is at least established by, registration and certification. Important legal consequences may follow from the achievement or termination of a particular status not least in relation to inheritance. Certification, while often routine, is therefore important. It is significant for example that where the Status of Children Act 1987 (“the 1987 Act” or “the Act of 1987”) contemplates a process for the declaration of parentage by a court, it provides for consequential registration, or re-registration, of birth and the issuance of a new certificate.
9. Fifth, and finally, it is important to observe that the facts of this case are somewhat unusual. It is, we were told, a much more common female infertility problem that a woman would require the donation of ova, rather than as here where a woman might be in a position to produce an ovum but not be capable of carrying a pregnancy. At least one formulation of the applicants’ case involves an invitation to this Court to update the law or to make a choice between competing definitions of mother. It is a relevant consequence that such a declaration would apply generally and to all situations, so that previously registered mothers and fathers could lose that status and anonymous donors of sperm and ova could become entitled to declarations of parentage and registration. It might be said that this is a possibility more theoretical than real and that the current system allows commissioning parents in that situation a facility denied to the parents in this case, of having their parentage registered, in the case of a woman by birth, and in the case of a father by acknowledgement, and in neither case are they obliged to bring the arrangements to the attention of the registrar. Nevertheless it is in my view not an irrelevant consideration, insomuch at least as this is a matter of discretion rather than legal interpretation. These then are only some of the considerations forming the background to this case.
The High Court Judgment
10. In an extensive judgment the High Court Judge considered detailed evidence from distinguished experts in the fields of genetics, pregnancy and birth and in particular relating to the developing field of epigenetics. Epigenetics was described as the process of gene expression whereby some genes are turned off and some turned on, and significantly for present purposes, this can occur through a number of factors including what happens in the womb. The Court also considered such references in the case law as were invoked by respective parties. The State, through the first named respondent, maintained that the person to be registered was the person who had given birth. This, it said, was no more than an application of the ancient maxim of mater semper certa est, the mother is always certain, or perhaps more precisely – ascertainable. The applicants on the other hand, together with the notice party, contended that the evidence showing the genetic link between the fourth named applicant and the first and second named applicants meant that the fourth named applicant was entitled to be registered as the mother of the first and second named applicants. Although clearly an issue such as this, or any issue concerning surrogacy has not previously been considered in any detail by an Irish court, the parties sought to mine the case law to extract dicta supportive of their respective positions. In particular, the applicants relied upon dicta arising principally in the field of contested adoptions in which the Court has considered the importance of what was described as the “blood link” between a mother and her child. Once such dictum was that of Kenny J. in G. v. An Bord Uachtála  I.R. 32 at p. 98:
11. It would be surprising if any dicta from a period preceding the developments allowing assisted reproduction by the separation of the ovum producing function from the birth giving function could resolve or even shed much light on the issue which arises in this case. In the event, both sides quoted the same scripture for their own purposes. The applicants relying on the blood link as a proxy for a genetic connection said that this approach showed that Irish law had always treated that connection as determinative. The respondents countered by arguing that Irish law’s distinction between, and preference for, maternal links showed that it valued the pregnancy and birth giving function over the mere provision of genetic material. I do not find the references to the importance of the blood link either persuasive in themselves or helpful in the resolution of this case. The judgment also referred to the important observations in Foy v. An t-Árd Chláraitheoir  IEHC 116. That case had certain points of similarity with the present in that it involved a claim by a person, in that case a transsexual, to have a birth certificate altered. There, McKechnie J. stated that “[t]he resulting register is a document of historical value, being current only at the date of birth and not beyond. It is no more than that” (para. 170). While I agree that the register (and certificate) is a document of historical value and documenting a historical fact, I would respectfully doubt that it can be said to be no more than that. It clearly had considerable significance for the plaintiff in that case and the applicants in this.
“The blood link between the plaintiff and her child means that an instinctive understanding will exist between them which will not be there if the child remains with the notice parties. A child’s parent is the best person to bring it up as the affinity between them leads to a love which cannot exist between adoptive parents and the child. The child is now 12 months old and children of that age are infinitely adaptable.”
12. Having recorded the evidence and arguments the Court came to certain conclusions. While acknowledging the developing field of epigenetics, it was found, unsurprisingly, that the influence of such epigenetics was not of such significance as to alter what it described as the “overriding significance of chromosomal DNA for the purpose of determining identity and inherited characteristics leading to a conclusion of the paternity and genetic maternity” (para. 98). The judge further rejected the State’s argument that Article 40.3.3o of the Constitution had embedded an interpretation of motherhood so as to give constitutional approval to the mater semper certa est maxim. While accepting that the Article used the word “mother” in the sense of the person carrying the child, the Court concluded, relying on the decision of this Court in Roche v. Roche, that Article 40.3.3o had been adopted in the very specific context of an anti-abortion amendment and did not have any broader significance and certainly did not determine the issue of entitlement to registration. The core of the judgment is to be found in a passage at paragraph 103:
Having reached this conclusion the Court relied on the judgment of O’Hanlon J. in S. v. S.  I.R. 68 to conclude that any irrebuttable presumption of mater semper certa est was inconsistent with fair procedures under the Constitution and did not accordingly survive the entry into force of the Constitution. This is a time honoured formulation when dealing with pre 1937 and pre 1922 legislation or provisions of the common law, but this case illustrates its limitations, and to some extent its artificiality. If the principle of mater semper was part of Irish law and became unconstitutional, this development took place when the facts changed in the late 1970s and when the process of motherhood became divisible. Until that point it could not be said that there was any difficulty with the application of the maxim: it was an elegant statement of an incontrovertible fact, and there could be no question about the validity of any registration affected by application of the maxim. On an appropriate occasion therefore, it may be necessary to reconsider the question of just how and when a provision of law can be said to be, or become, unconstitutional.
“In view of my findings in relation to the determinative nature of chromosomal DNA, I find that while the input of a gestational mother to an embryo and foetus not containing genetic material from her is to be respected and treated with the care and prudence which the best medical practice dictates, the predominant determinism of the genetic material in the cells of the foetus permits a fair comparison with the law and standards for the determination of paternity.”
13. Having reached these conclusions, the Court turned to consider the evidence of what appeared to be an international or at least European consensus that a presumption of mater semper certa est was the appropriate starting point in dealing with the surrogacy question. This evidence was given by the registrar and comprehended the fact that even in those countries where surrogacy is permitted, the birth mother is first registered as the mother. Then, if appropriate, commissioning parents may apply to change the birth certificate. If this application is successful second birth certificates may be issued with evidence of the original circumstances of birth left on the register too. The trial judge expressed the strong view that any so called international and historic consensus of registration of the birth mother should not restrain the Court from coming to the conclusions it did, because no reasons had been advanced to show why any such consensus had arisen. As a result, the Court granted declarations that the fourth named applicant was the mother of the first and second named applicants pursuant to s. 35(8)(b) of the Status of Children Act 1987 and furthermore, that she was entitled to be registered as mother on the birth certificates and the first and second named applicants (the children) were correspondingly entitled to have her registered as their mother.
14. Finally the Court went on to consider what it described as “alternative arrangements”. While acknowledging that it was not strictly necessary to do so in the light of the findings, nevertheless the Court expressed the view that it was feasible for the parties in this case to agree, and then the notice party could consent to the twins being placed for adoption with the third and fourth named plaintiffs and that it was likely “subject to the formalities, that such adoption would be sanctioned with the least possible difficulty” (para. 108). In such an event, the problems envisaged with inheritance, taxation and marriage would be effectively eliminated. However this conclusion did not affect the outcome of the case. The Court considered that the fourth named applicant was entitled to registration as the mother as a matter of law. The respondents have appealed against the judgment, and the matter has been fully argued in this Court by all the parties and the amici curiae.
15. It is necessary first to consider the ancillary findings made by the High Court Judge that adoption was possible in this case since at the time of birth, the notice party/surrogate/birth mother was no longer married and could place the children for adoption, since it was argued that this removed any necessity to address the more general issues. The High Court considered that adoption would regularise all of the “difficulties complained of in this case” (para. 83) as on adoption, the children would become legally and indisputably the children of the third and fourth named applicants. This finding was relied on by the appellants (heretofore “the respondents”) in this appeal. It was argued that the finding undermined the decision of the High Court both in practical and legal terms. Adoption was a route which solved in a practical way all the applicants’ difficulties, present and anticipated. Furthermore, if this was so, then a procedure was available to deal with the applicants’ collective difficulty, and accordingly it could not be said that initial registration of the birth mother as mother, subject to subsequent registration of the fourth applicant on adoption, was an unfair procedure and inconsistent with the Constitution. It was acknowledged that the applicants objected to the concept of adopting children they regarded as their own and that they maintained that the fourth named applicant was entitled to be registered as their mother as of right, and to the exclusion of any reference to the birth mother. It was suggested however that whatever psychological validity and importance this might have for the applicants, the law could not, or at least should not, be used to bend the facts to suit a personal narrative, however important that was to the individual. The fact was that the children were born to another woman and that fact could not, and should not be entirely erased. Furthermore, for reasons which will be considered later in this judgment, the appellants argued that a uniform practice of initial registration of a birth mother was an important part of the system of registration.
16. If it could be shown that the adoption procedure would necessarily, and as a matter of certainty, lead to the children becoming the lawful children of the fourth named applicant without difficulty, then in my view that would have had a significant impact upon this case, and removed the necessity for this Court, and more importantly the High Court, to consider the difficult issues raised here, and which have important consequences for many other citizens not represented in these proceedings. (It is more important that where appropriate, the High Court abstain from addressing far reaching issues which do not properly require determination, because if it does not do so, it may not be possible for this Court to refrain from addressing such issues. The decision of the High Court will stand as a declaration of law, which this Court may then be required to address). Furthermore, I imagine that if there was serious practical difficulty in relation to inheritance, taxation or marriage, the parties would have been well advised to follow the route of adoption which, even if cumbersome, at least avoids the necessity of engaging with the stress, expense and disclosure involved in legal proceedings. However, in my view it does not matter if these proceedings were commenced for reasons of strongly held principle, or obduracy, or a more general desire to drawn attention to a lack of regulation for a surrogacy, or a mixture of these factors and others. I have come to the conclusion that the applicants were entitled to maintain these proceedings and have them determined. I would be very reluctant to decide this case (or more accurately abstain from deciding it) on the basis that an adoption process was readily available, at least on the limited argument and information advanced. Out of court solutions often appear beguilingly simple when viewed from the perspective of the difficulties encountered in court, but become much more difficult once investigated. Here I would require to have much greater clarity about the legal consequences of the fact that the birth mother/surrogate mother although separated was still legally married at the time of birth, and about what precisely is involved in the process of placing for adoption, the time scale and procedures involved and the degree of assurance, legal as well as practical, that the applicants would indeed become the adopted parents, before I would be prepared to decide that adoption by the commissioning parent or parents was both available, and removed all possible difficulties so as to render these proceedings either unnecessary in fact or ill founded in law. Fundamentally however, the adoption process could only resolve the difficulties posed by surrogacy, and assisted reproduction generally, if the legislation specifically addressed those issues, and the one fixed point in these proceedings is that that is something which Irish legislation has, shamefully, failed to do. It would be a matter of pure happenstance if a current adoption regime was able to resolve all these applicants’ practical and legal difficulties. I am not satisfied that it would, as anything other than a nod and wink Irish solution to an Irish problem. In my view therefore, the applicants are entitled to maintain these proceedings and the Court must address them.
17. The High Court Judgment is a careful consideration of a very difficult area. Considering itself to be faced with a choice between a birth mother and a genetic mother, it eschewed ideology, and followed what it considered was the best scientific knowledge, and in doing so can be said to have made new law. In deciding individual cases courts may unavoidably establish principles which determine all other disputes raising the same issue of principle (at least until those principles are themselves altered by further decisions, legislation or possibly constitutional amendments). That is in one sense to make law, even if it occurs much less often than students and commentators imagine or would perhaps like. But such decision making, even with far-reaching effect, is not legislation nor is it the same as legislation. A court’s function and skill is in deciding justly the particular case before it, and it does not necessarily have full visibility of, or information in relation to, all other circumstances potentially affected by its decision. Furthermore, it is constrained as to how it can decide a case. The court is required to decide a case according to the law. It is not free to decide a case simply because it considers the result popular, wiser or more attractive, or indeed because it affects an acceptable if illogical compromise between competing interest groups. The court’s options are limited. Taking this case as one example, the decision in the High Court appears to have been one to all intents and purposes between the genetic mother and the birth mother, and the choice of one excludes the other. Even then, whoever is registered must stay registered for all time, as I understand it, no one suggests that it is open to the Court to create a scheme for sequential registration. Nor can it decide that if certain requirements are followed, the commissioning parent is to be treated as the parent; still less can it decide what those requirements are. In principle, and subject to the Constitution, a much wider range of options are open to the Oireachtas.
18. These structural constraints impose limits on the manner in which courts develop the law. In most cases courts develop principles incrementally and avoid so far as possible sweeping generalisations, however much that might be applauded by the law student in search of a simple or memorable principle, or commentators who happen to agree with the outcome. Sometimes this incremental approach is couched in terms that the Court should not usurp the functions of the legislature. In this jurisdiction, courts on occasions point to the sole and exclusive power to legislate conferred upon the legislature by Article 15.2 of the Constitution. But in my view, this limitation is perhaps better understood as a limitation on the powers of courts which is inherent in the nature of courts and the administration of justice. Sometimes the administration of justice may indeed require a decision which has dramatic and far-reaching implications. If the decision is truly required to decide the case then it is not a valid objection that it sweeps far and it would not be contrary to Article 15.2. But such a step must be truly required by the obligation to administer justice in the case, even considered broadly. If it is not necessary to decide a particular issue or decide it in a particular way to decide the case, then it may be necessary, or at least wise, not to decide it.
Submissions of the Respondents/Appellants
19. The appellants’ arguments focus on the broader implications of the determination in the High Court. Acknowledging as they must, that little harm could be said to be caused if this fourth named applicant is registered as the mother of the infant applicants, the appellants nevertheless argue that if the judgment of the High Court is correct, it must follow that the provider (female or male) of genetic material is always entitled to be declared the mother or the father as the case may be, and registered accordingly. The condition that so unfortunately afflicts the fourth named applicant and means that she does not possess a uterus capable of permitting the implantation and gestation of a fertilised ovum, is relatively unusual (indeed it was said that this might be one of the first cases in Ireland of surrogacy using the ovum of the commissioning mother). It is accepted on all sides in this case however, that it is much more common that women experiencing fertility difficulties would have the reverse condition: while having a functioning uterus, might not be able to produce ova, or at least ova capable of being fertilised and implanted naturally. A male partner may desire children but be unable to produce sufficiently fertile sperm, and the couple may accordingly seek a donor. As the law currently stands, in these more commonly encountered cases, the male and female partner will be registered as parents without difficulty: the female because she gives birth and the male because he is either the husband or has acknowledged parenthood. But the appellants point out that at least in theory, all of these people and their families would be at risk of losing their status and have their legal position thrown into uncertainty if the High Court Judgment is correct. While it might be fanciful to imagine a stream of donors of ova and sperm coming forward to assert parenthood, it is highly undesirable that these families’ legal status should be conditional and defeasible as would be the case if the High Court Judgment is correct. Furthermore, since status is relevant to issues of inheritance and taxation and therefore money as well as relationships, it is not just as implausible that for example, on marital breakdown, or on issues of inheritance, spouses or siblings or other relatives may seek to deny to others the status of parent, child or sibling as the case may be, if as the High Court seemed to conclude, genetics are decisive in determining parenthood.
20. It might be argued (although this issue does not appear to have been considered in the High Court), that this alarming scenario is not so much a consequence of the ruling of the High Court as the unsatisfactory state of legislation. Since assisted human reproduction has been possible, and has been at least tacitly permitted in Ireland in the sense that it has not been directly prohibited or even regulated in any way, anomalous outcomes are possible whoever the Court decides is required to be registered on the birth certificate initially. The law, it might be argued, cannot be decided on the basis of a head count. A decision must be made on the basis of the best available evidence. If the result arrived at on this basis is insufficiently nuanced, then legislation can be introduced and indeed a court decision might be the best impetus for such legislation. This argument has some merit. However, the appellants go further and argue that a consequence of the High Court Judgment is to impose a significant straight jacket upon the types of legislative solution that might be introduced. Thus it is argued that if the High Court Judgment means only the genetic parent could be registered as the father or mother, and if this is constitutionally required (as the judgment seems to hold) then it would follow that any legislative regime which did not accord with it would be invalid. Thus, for example, it might not be possible to introduce a regime which would require initial registration of a birth mother followed by a process for the recognition and approval of a surrogacy agreement and subsequent re-registration. There are many public policy reasons favouring such a process, and it is a solution adopted in other countries, but it is argued that if the High Court Judgment was correct, it could not be legislated for here. Far from stimulating legislation it is said, the judgment hinders it.
The Submissions of the Applicants
21. Faced with these arguments, counsel for the applicants have taken a more nuanced line. Arguing in favour of the outcome arrived at in the High Court, counsel stopped short of supporting those portions of the High Court Judgment, particularly that quoted above, which seemed to hold that registration of the genetic mother was constitutionally required. Instead it was argued that registration of the genetic mother was required, as it happened, by the current state of Irish legislation and in particular those provisions introduced by the 1987 Act relating to blood testing for proceedings determining parentage. Counsel, in a careful and intricate argument, sought therefore to support the conclusion arrived at in the High Court but on a basis with less far-reaching implications for future legislation.
22. It is argued that “mother” was not defined either in the Civil Registration Act 2004 (“the 2004 Act” or “the Act of 2004”) or more generally, perhaps for the reason that it was not considered necessary. Section 50 of the 1987 Act provides that, so far as that Act relates to declarations of parentage, it is to be read together with the Births and Deaths Registration Acts. The 1987 Act plainly lays emphasis upon blood testing as a method of proving parentage. In keeping with the science known at the time, it was understood that blood testing could exclude, but not positively prove, parentage. Thus s. 40(2)(b) of the 1987 Act provides that where a blood test was ordered by the court, the person taking the test should report to the court:
“(i) whether the person to whom the reports relates is or is not excluded by the results from being a parent of the person whose parentage is in question, and
(ii) if the person to whom the report relates is not so excluded, the value, if any, of the results in determining whether that person is a parent of the person whose parentage is in question”.
23. From these statutory provisions in relation to blood testing and reporting, two related conclusions are drawn by the applicants: first, the law was and is guided by and reflective of the best available scientific knowledge and second, and more particularly, blood relationship (if provable) is understood, and intended, to be the determining feature in parentage. In 1987, so the argument runs, blood testing could disprove parentage and the only thing limiting its capacity to positively prove parentage was the then limitations of the science. But as between blood and birth (which arguably was the issue in this case), the provisions of the 1987 Act make clear that parenthood is in principle to be determined by blood. Now that DNA testing is available, that means that genetics determine parenthood, and more specifically, motherhood.
24. The next step in the reasoning is the decision of the High Court (Budd J.) in G.N. v. K.K. (unreported, 21st of December 1993) in which it was accepted that the blood tests contemplated by the 1987 Act could include DNA testing which might not simply exclude paternity (which was an issue in that case) but might positively establish it. Thus the 1987 Act, it is argued, must be understood as showing that paternity or maternity is to be established by blood testing and, now, by DNA testing.
25. This argument is reinforced by a consideration of the development of parallel provisions of the law of the United Kingdom. There, blood testing was provided for by s. 25 of the Family Law Reform Act of 1969, and such testing was introduced in 1972. This testing was to be carried out to identify the presence or absence of “inheritable characteristics of blood”. From the 1st of April 2001 scientific tests could be used rather than merely blood tests and the criterion was amended to provide for the identification of “inheritable characteristics of bodily fluids or bodily tissue”. By way of comparison it should be said that s. 37 of the 1987 Act defines a blood test in similar terms as a test made “with the object of ascertaining inheritable characteristics”. Importantly, UK law provides for the regulation of assisted reproduction in general and for surrogacy agreements under limited circumstances, in the Human Fertilisation and Embryology Acts of 1990 and 2008. It is pointed out that that legislation is careful to specifically provide that a woman who has a child by IVF is a mother, and s.25 of the Family Law Reform Act 1969 was amended to provide that persons who had children by artificial insemination or IVF were not to be excluded from parentage because of the absence of “inheritable characteristics”. It is argued that it should be deduced from this that without such an express saver such a person would have been excluded from the definition of parent. In simple terms, it is therefore argued that the UK, by providing for blood and now scientific testing, made genetics the determinant of parenthood generally. Finally, it is argued that Ireland adopted essentially the same approach in permitting blood testing (which must now be understood to include genetic testing) with the same consequence, but had made no such similar saver. The conclusion for present purposes is that motherhood and maternity were, by statute, to be determined by genetics and not by birth. An irrebuttable presumption of mater semper certa est could not therefore stand and the presumption must be capable of rebuttal just as it was held in S. v. S. by O’Hanlon J. that an irrebuttable presumption of legitimacy did not survive the coming into force of the Constitution, and that a man must have the right to disprove parentage. (It may be observed that this last step is not essential to the argument since if the applicants are correct, “mother” in the 2004 Act means, in effect, the genetic mother as a matter of statutory interpretation alone. If this is correct, then any irrebuttable presumption of maternity even if it existed, has simply been overridden by statute, and it is not necessary to resort to the Constitution to achieve that outcome)
26. It should be observed that the argument made here is made by reference to what is to be deduced from the statutory provisions and the applicable case law, rather than from their application in this case. Although a declaration was sought that the fourth named applicant was the mother of the first and second named applicants, the procedure under the 1987 Act was not invoked, no tests were ordered and no reports made pursuant to s. 20 of the 1987 Act. Counsel for the applicants argued merely that on a true interpretation of the statutory provisions taken together “mother” in Irish law, for the purposes of registration on birth, was, at least in cases of dispute, to be determined by reference to genetics rather than the fact of birth.
27. It becomes important, indeed critical, to define with as much precision as possible the issue before this Court. The applicants sought and were granted a declaration that the fourth named applicant was the mother of the first and second named applicants. But this was not a declaration in the abstract. It was a necessary step to the second declaration granted namely that the fourth named applicant had a right to have the birth certificates of the first and second named applicants altered, and to be entered upon those birth certificates as their mother, to the exclusion of the notice party who had been so registered by the first named respondent. The first and second named applicants had, it was held, a corresponding right to have the fourth named applicant registered on their birth certificates as their mother. I consider it therefore both fair and accurate to identify the precise question for this Court as this: who, on the acknowledged facts, is entitled to be registered as the mother of the first and second named applicants on their birth certificates, pursuant to the provisions of the Civil Registration Act 2004? That is in turn essentially a question of statutory interpretation. The interpretation of statutes may of course also involve the interpretation of the Constitution both as potentially influencing the interpretation of the statute where that is required and possible, or as possibly leading to the constitutional invalidity of the statute as interpreted. But in the first place, I consider that it is useful to approach this as a simple question of statutory interpretation: what does the 2004 Act mean when it refers to “mother”? In particular, does it mean in this case the woman whose egg is fertilised and which develops through pregnancy into the baby who is born, or does it mean the woman who gives birth to the baby, or perhaps to both?
28. This is not an easy question but it is useful to identify just what is not involved. This is not a question of whether a genetic or a gestational mother provides more genetic material to a child. Nor does it involve a question of policy as to who should be registered as a mother where the gestational and genetic mothers are not the same person, now that we know for the first time in human history that it is possible to separate the functions of reproduction and birth into at least two if not more parts which can be carried out by at least two, if not more, people. Nor does this case involve any question of the validity or enforceability of surrogacy agreements in this or in any other case. Nor, at least in my view, does it involve any inquiry into the common law predating legislation such as the Births and Deaths Registration Act (Ireland) 1880 (“the 1880 Act”), or the existence and scope of any maxim of mater semper certa est. To approach this case on the basis that because the word “mother” is not specifically defined in the 2004 Act it does not have a specific meaning in the relevant legislative context, and that it is therefore necessary to consider the existence and persistence of a Latin maxim, or the state of 19th century common law, is in my view an error. We should not be too quick to abandon the statutory context.
29. Concepts such as presumptions whether rebuttable or irrebuttable, and phrases and maxims may often be very useful to lawyers since they express reasonably precisely concepts which are well understood and in that way, as helpful shortcuts, may assist reasoning. However, if not properly deployed, at times they can deflect from, rather than assist reasoning. It is true that Walsh J. said in O’B. v. S.  IR 316 :
But in my view at least, that does not lead to a consideration of the application of a presumption, irrebuttable or otherwise. The important words in that sentence are “by reason of”. Walsh J. did not suggest that the maxim applied in Irish law prior to the enactment of the statute, or applied more generally. In effect, all that that learned judge was saying in that passage was that the effect of the legislation was to require registration of the mother as the woman giving birth. That legislation was in that form and contained that requirement, no doubt because the Victorian legislators shared the universal assumption contained in the Latin maxim and put elegantly by Lord Simon of Glaisdale in Ampthill Peerage  A.C. 547 at p. 577:
“…[t]he maxim mater semper certa est … does apply in Irish law by reason of the provisions of ss.1, 7 and 28 of the Births and Deaths Registration Act (Ireland), 1880.” (p. 338)
But whether that assumption was, or more pertinently is now, correct, is strictly irrelevant to the legal issue of statutory interpretation in this case. If indeed the 1880 Act requires registration of the birth mother as mother it does so by virtue of the statute and not because of any maxim or common law. If these factual assumptions underlying the legislation has been falsified by subsequent developments and scientific knowledge then that may be a reason to change the legislation, but it cannot change its meaning. There are of course examples of cases in which courts have been able to adopt what has been described as an updating interpretation of legislation, and this case illustrates at least one such circumstance. The statutory concept of blood test for the purpose of ascertaining parenthood has been interpreted to include much more precise scientific tests. In my view, this case is not one of those limited circumstances in which this technique is available. On the assumption for this aspect, that the legislation whether in 1880 or in 2004 identified the person giving birth as the mother, then to interpret the legislation to make the person providing the ovum and therefore the DNA as the mother rather than the birth mother would be to alter and reverse the original meaning of the legislation, rather than merely interpreting it to apply not only to the original situation but also to a circumstance not envisaged at the time. It follows that in my view, the question is what the 2004 Act meant, and still means, when it required registration of a birth and in doing so registration of the “mother”.
“Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition. Fatherhood, by contrast, is a presumption.”
30. The 2004 Act is very similar in structure to the 1880 Act because of course it performs the same function. The relevant provisions of s. 19 containing the obligation to register the birth of a child have been set out. Thus it is sufficient to point out that the provisions apply “when a child is born in the State” and a duty is imposed upon the parent and others to give “the required particulars of the birth” to the registrar. The required particulars are set out in Part I of the First Schedule of the 2004 Act and include: forename(s), surname, birth surname, address and occupation of mother, former surname(s) (if any) of mother, date of birth of mother, marital status of mother, personal public service number of mother and birth surname of mother’s mother. The same details are required in respect of the father.
31. This is similar to the structure of the Births and Deaths Registration Act (Ireland) 1880. Section 1 of that Act provided that:
Again, among the particulars required were the name and address of the mother. It is perhaps noteworthy that both statutes, for obvious reasons, speak of “mother” in the singular and without a definite or indefinite article. It is an indivisible, or at least undivided, concept.
“In the case of every child born alive … it shall be the duty of the father and mother of the child, and in default of the father and mother, of the occupier of the house in which to his knowledge the child is born, and of each person present at the birth, and of 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.” (emphases added)
32. When this issue is approached as the narrow question of statutory interpretation of the identification of the person required to be registered as mother, it becomes less complex. It becomes apparent that the Act of 2004 follows the 1880 Act in contemplating registration of the birth mother as the mother. As Learned Hand J. observed in Cabell v. Markham (1945) 148 F.2d 737 it is necessary to “remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning” (p. 739). Here, the purpose of the 2004 Act (and indeed the 1880 Act) is plain. It is to establish and maintain a system of registration. That registration in this case is of the fact of birth. The Act operates by reference to the date of birth and requires compliance within a fixed period thereafter. While a birth certificate has subsequent importance as evidence, its original and basic function is demographic. The 1880 Act was part of the Victorian age’s admirable urge for organisation, cataloguing, counting and defining and by that process providing an essential substratum of information for the understanding and governance of society. The 2004 Act follows the same structure and performs the same function. From the function it was intended to fulfil and the circumstances in which it operated, it seems clear that under the Act, the person to be registered on the birth certificate as mother under both the 1880 Act and the 2004 Act is unsurprisingly, the person giving birth. Science may have undermined or at least qualified the assumptions upon which the Act was based, but that does not alter the interpretation of the Act.
33. However, it was argued by counsel for the applicant that the Status of Children Act 1987 had in effect changed the law so that the indicium of parenthood, whether by paternity or maternity, was the existence of a blood relationship, originally only capable of disproof by blood testing, but now capable of positive proof though DNA testing. While at the time of passage of the 1987 Act there may have been no consideration of the possibility that the person providing the ovum and the DNA might not be the person giving birth, the fact was that by permitting such blood testing in accordance with the then state of the art scientific knowledge, the 1987 Act shifted the indicium of maternity from birth, to blood/DNA testing. In 1987 that might only have been a more definite way to identify the person who gave birth in for example, the case of mistakes made in hospitals, but it had the effect that when science permitted a child to be born where the ovum was provided by one person and the birth by another, the 1987 Act meant that maternity was determined by testing and therefore the person who provided the ovum/DNA was, by that process, the person to be registered as mother.
34. I regret that I cannot accept this ingenious argument. The developments in the United Kingdom legislation are in my view too ambiguous and elusive to assist in establishing unmistakably the meaning of separate Irish legislation. No authority was cited for the meaning of the UK Act before or after the Human Fertilisation and Embryology Act 1990. It is in general, dangerous to seek to interpret the provisions of an Act by reference to a subsequent amendment without knowing whether that amendment was intended to alter or clarify or simply remove doubt. It is obviously even more difficult to use this process to interpret legislation in another jurisdiction. If the interpretation of the 1880 Act and the 2004 Act as set out above is correct, then by that legislation the “mother” required to register the birth, and be registered as “mother”, is the person giving birth. If so, then the 1987 Act did not purport to change that understanding or meaning. The 1987 Act was instead itself based on the assumption that blood testing could establish at least negatively, parenthood, which in the case of a woman at the time of passage of the 1987 Act, meant the woman who gave birth. The assumption that blood testing would even negatively prove birth in all cases may have been falsified by the developments in the science of reproduction, but the 1987 Act did not alter the identity of the person to be registered. That was and remained, the person giving birth.
35. I found the submissions by the amici curiae in this case helpful and insightful. It is necessary to consider one argument advanced on equality grounds in the course of this appeal. This was based largely on the judgment of O’Hanlon J. in S. v. S. in which it was held that the irrebuttable presumption of fatherhood contained in the rule against giving evidence which would have the effect of rendering a child illegitimate (as the law at the time stood), was repugnant to the Constitution, and accordingly had not survived the coming into force of the Constitution. It was argued therefore that any irrebuttable presumption of motherhood (or perhaps even statutory provisions which permitted the registration of the birth mother only) were also unconstitutional, and indeed created an inequality based on gender.
36. The argument made had some superficial attraction. In my view however, it is misplaced for a number of reasons. Any equality argument involves the proposition that like should be treated alike. Any assertion of inequality involves identifying a comparator or class of comparators which it is asserted are the same (or alike), but which have been treated differently (or unalike). In each case it is necessary to focus very clearly on the context in which the comparison is made. It is important not simply that a person can be said to be similar or even the same in some respect, but they must be the same for the purposes in respect of which the comparison is made. A person aged 70 is the same as one aged 20 for the purposes of voting, but not of retirement.
37. On consideration, it seems clear that whatever the superficial similarities, there are significant differences between the situation here and that which was dealt with by O’Hanlon J. First, he was considering a common law rule of evidence rather than the interpretation of a statute. Second, the case did not involve, at least directly, registration of birth but rather ongoing practicalities of parenting/inheritance. But perhaps the most significant difference arises from the different gender roles in reproduction and which consequently, have particular consequences given the advances in science already discussed. In nearly all areas of human activity which come before the courts there is no relevant distinction between male and female. However, the fundamental distinctions between men and women are rooted in the reproductive function. The male/paternal role in reproduction is a limited but, at least as matters stand, indivisible one. The only impact of science upon this role has been that methods of testing now allow paternity to be proved almost as a matter of certainty rather than something which could be uncertain. It is obvious however that the female role in reproduction goes far beyond the provision of an ovum containing DNA. Again as the science currently stands it also involves implantation of the fertilised ovum, gestation and, ultimately, birth. Critically for present purposes, the advance of science now means that that function is not necessarily carried out by the same person. Once DNA testing became available, it became possible to identify the one and only one person who was the father. Positive identification of the father also rules out any other male person as involved in the reproductive process. It was obviously unfair to insist that in every case a husband was to be treated as the father even when that could be disproved. By contrast, the female role in reproduction is not only different and more complex, it is also now divisible. DNA testing does not permit, any more, the identification of the single female person involved in the reproductive process from conception to birth, and the exclusion of any other person. For the purposes of registration, a choice must be made between two persons who each fulfil part of the function traditionally performed by a mother. It is not self-evidently contrary to any constitutional scheme to require the registration of the birth mother as mother, at least initially, especially when to do so maintains consistency with all other births, and indeed other birth registration systems.
38. It should be apparent however that this conclusion is dependent upon the essentially narrow focus of this case. It is in my judgment permissible to have a birth registration system registering the birth mother, initially. That is what the 2004 Act does. But that only illustrates the fact that serious constitutional issues must necessarily arise if that position is maintained for all time and for all purposes. From a human point of view it is completely wrong that a system, having failed to regulate in any way the process of assisted reproduction, and which accordingly permits children to be born, nevertheless fails to provide any system which acknowledges the existence of a genetic mother not merely for the purpose of registration, but also in the realities of life including not just important financial issues such as inheritance and taxation, but also the many important details of family and personal life which the Constitution recognises as vital to the human person. Very different issues would arise in such circumstances. In my view however, on the narrow question of registration on birth raised in this case, the first named respondent is correct that the 2004 Act on true construction requires the registration of the birth mother and in doing so is not unconstitutional. I wish to make it as clear as is possible that this decision is limited to the question of immediate registration of birth: it should not be taken as deciding anything more.