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Judgment
Title:
M.R. and D.R. (suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors
Neutral Citation:
[2014] IESC 60
Supreme Court Record Number:
263/2013
High Court Record Number:
2011 46M
Date of Delivery:
11/07/2014
Court:
Supreme Court
Composition of Court:
Denham C.J., Murray J., Hardiman J., O'Donnell Donal J., McKechnie J., Clarke J., MacMenamin J.
Judgment by:
Clarke J.
Status:
Approved
Result:
Allow And Set Aside
Judgments by
Link to Judgment
Concurring
Denham C.J.
O'Donnell Donal J.
Murray J.
Hardiman J.
O'Donnell Donal J.
Hardiman J.
McKechnie J.
Clarke J.
MacMenamin J.
O'Donnell Donal J.



THE SUPREME COURT
[Appeal No: 263/2013]

Denham C.J.
Murray J.
Hardiman J.
O'Donnell J.
McKechnie J.
Clarke J.
MacMenamin J.
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)
      Between/
M.R. and D.R. (suing by their father and next friend O.R.) and O.R. and C.R.
Applicants/Respondents
and

An tArd Chláraitheoir, Ireland and the Attorney General

Respondents/Appellants
and

L.L.

Notice Party
and

The Equality Authority and the Human Rights Commission

Amici Curiae

Judgment of Mr. Justice Clarke delivered the 7th November, 2014.

1. Introduction
1.1 What is motherhood? Who is a mother? These are questions to which it might be thought there were uncontroversial answers. Such issues could be debated at a scientific, ethical or philosophical level. However, these proceedings are not, or at least not mainly, about how the term mother might be considered in those or other disciplines. These proceedings are about the current legal definition of motherhood and the current legal identity of the person or persons who might properly be regarded as a mother.

1.2 The underlying facts are neither disputed nor, in any legal sense, controversial. The children named in the title to these proceedings are twins ("the twins"). There is no doubt but that the third named applicant/respondent is the genetic father of the twins and that the fourth named applicant/respondent is their genetic mother (respectively "the genetic father" and "the genetic mother", collectively, "the genetic parents" and together with the twins collectively "the R family"). The genetic mother suffered from a medical condition which, while permitting her to produce ova, meant that she was unable to carry and give birth to a child. The notice party ("the birth mother") is the sister of the genetic mother. The genetic parents came to an agreement with the birth mother that, utilising modern scientific methods, an embryo or embryos would be produced by the fertilisation of ova taken from the genetic mother by spermatozoa taken from the genetic father. It was agreed that such embryo(s) would be implanted in the birth mother who would then carry what would turn out to be the twins to the point of their being born. In those circumstances both of the genetic parents and the birth mother are all agreed that the genetic mother should be regarded as the mother of the twins in law.

1.3 However, the first named appellant/respondent ("an tArd Chláraitheoir"), based on legal advice, took a different view. On the basis of that advice an tArd Chláraitheoir considered that the only person entitled to be registered as the mother of the twins, in the agreed circumstances to which I have just referred, was the birth mother. It was on that basis that these proceedings were launched in which it is asserted that the genetic mother is entitled to be registered as the mother of the twins. For reasons which it will be necessary to address in some detail, the proceedings were successful before the High Court (Abbott J.) who gave judgment on the 5th March, 2013 (M.R & Anor v An tArd Chláraitheoir & Ors [2013] IEHC 91).

1.4 An tArd Chláraitheoir and the other state respondents/appellants (collectively “the State”) have appealed to this Court against that finding. It should also be recorded that, with the permission of the Court, the Equality Authority and the Human Rights Commission (collectively "the amici") were permitted, as amici curiae, to file written argument and make oral submissions at the hearing of the appeal. While it would, I think, be fair to say that the position adopted by the amici was not identical to that urged by both the genetic parents and the birth mother and likewise was not identical to the position determined on by the trial judge in the High Court, nonetheless the position of the amici was broadly supportive of the rights asserted by the genetic parents and the birth mother.

1.5 This appeal raises difficult but extremely important questions. But it is, I think, of equal importance that there be clarity about the role of this Court and equal clarity not just about what issues this Court has to decide but also about what questions are outside the scope of this Court's role. For that reason it seems to me to be important to start with some general observations about the scope of this appeal.

2. General Observations on the scope of the Appeal
2.1 As noted earlier this case is about how the law currently defines a mother for the purposes of the registration of a child. In that context it will be necessary to say something about the legislation which governs the registration of births in due course. It will also be necessary to say something about the legislation which enables the Court to declare persons to be the parents of a child. There can be little doubt but that a proper analysis of that legislation forms an important part of the consideration which this Court has to give to the issues which arise on this appeal.

2.2 It is also important to record the fairly obvious fact that there have been very significant advances in reproductive science over the last number of decades. It will again be necessary to touch on some of those advances in the course of this judgment. It is important, however, to be clear that the issues with which this Court is concerned are not, at least directly, ones of science. It is important that the respective roles of law and science in controversies such as this are both well understood and clearly defined. Law is to be found in the Constitution and in those other sources of law which the Constitution recognises. Given that both the Constitution of the Irish Free State (Article 73) and Bunreacht na hÉireann (Article 50.1) recognise the continuance in force (subject to consistency with the provisions of the respective constitutions) of the law as it existed immediately prior to their respective adoption, the common law forms part of the constitutionally recognised law of Ireland. The common law is based on historical precedent with due recognition of the binding nature of the decisions of higher courts. The common law has, of course, inherent within it, its own capacity to evolve to meet changing circumstances and to apply established principles to new conditions. Were it not for this inherent capacity, the common law would have remained frozen (either generally or at least in this jurisdiction under our constitutional regime) and it is difficult to see how landmark cases such as Donoghue v. Stephenson [1932] A.C. 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, and Central London Property Trust Ltd. v. High Trees House Ltd. [1947] K.B. 130, could have been determined the way they were and, indeed, accepted as informing the common law in this jurisdiction. At a minimum those, and other similarly important, cases can be said to have restated in altered terms or even redefined those aspects of the common law with which they were concerned.

2.3 However, the sole and exclusive power to make legislation under the Constitution is conferred on the Oireachtas (Article 15.2.1). In that context, there are limits to the extent to which it is constitutionally appropriate for the courts to engage in a reinterpretation of the common law where such interpretation might cross the line into legislation and, thus, infringe the constitutionally protected role of the Oireachtas. The application of underlying existing common law principles to new circumstances is one thing. The development of substantially new principles or policies is another.

2.4 Thus, the way in which law can change is by means either of a legitimate and permissible evolution of existing common law principles to meet new circumstances and conditions as part of the inherent evolution of the common law, by express legislation, or by means of constitutionally mandated changes resulting from the role of the courts as interpreters of the Constitution. In the latter context the law may change either because statute law is found to be unconstitutional, common law rules are likewise found to infringe the Constitution, or it is necessary to otherwise ensure that constitutional rights are protected and vindicated.

2.5 However, it is clear that the role of the courts in that process, while important, is limited. Short of the existing law being found to be in breach of the Constitution, the only proper role of the courts is to play their appropriate part in the evolution of the common law in its application to new conditions and circumstances or to interpret legislation. Even where it is clear that the existing law is no longer fit for purpose it may well be that the only solution lies in legislation. This will particularly be so where any solution to identified problems requires significant policy choices and detailed provisions beyond the scope of the legitimate role of the courts.

2.6 Where science fits into such a picture may very well depend on the circumstances of the case. Just because scientific advances have rendered existing law obsolete does not mean that the courts can provide a ready solution. There may, of course, as earlier noted, be circumstances where the courts are required, in the ordinary way in the exercise of the proper role of the courts in the evolution of the common law, to develop common law principles to meet new scientific circumstances. Contract law, which developed in the age of the mounted courier and the telegraph has had to adapt, largely without legislative assistance, to the electronic era. Traditional concepts in the criminal law have had to be applied in very different circumstances to those in which they originally evolved. The application of long established law to an era of social media is often a vexed question. There is, therefore, scope for permitting the proper evolution of the common law to meet new scientific circumstances. But in many cases a law (whether the common law or statute law) which is outdated, no longer fit for purpose and at odds with the developments in science, can only properly be changed by legislation. In such circumstances all the courts can do is to exercise their proper role. It seems to me that that role is, potentially, threefold:-

(a) The courts can ascertain whether it is both appropriate and permissible to allow for the evolution of common law principles to meet the sort of new circumstances and conditions which have been brought about by advances in science;

(b) The courts may have to consider whether, in the light of the current state of scientific knowledge, any breach of constitutional rights has been demonstrated such as would warrant the intervention of the courts; but

(c) In the absence of either of the above being appropriate, the courts can only take such measures as may be within the courts proper constitutional role to attempt to bring about a necessary change in legislation.

2.7 It is of particular importance to emphasise at this stage that this case is about the law as it now is and not about the law as it should be. In order to consider what the law now is, it is, of course, necessary to review what the common law traditionally said. Next, an assessment must be made as to whether that law needs to be reconsidered (within the scope of the proper role of the courts) by reason of modern conditions. If necessary, consideration may have to be given to whether any constitutional rights are involved and, of course, to the proper application and interpretation of any statute law governing or affecting the situation. However, if, as a result of the proper consideration of all of those sources of law, the situation remains unsatisfactory then the only solution is legislation. To the extent that it might be said, in such circumstances, that the law has failed to keep up with science, then this is a failing of the legislature rather than of the courts. For the reasons which I have sought to address the courts have an important but ultimately limited role in the evolution of the law under our constitutional regime. If law becomes outdated by reference to modern scientific developments there may be, therefore, only limited means available to the courts to remedy that situation. The principal remedy may well lie in the hands of the Oireachtas.

2.8 It might also be said that the law cannot, and does not, adopt an approach which flies in the face of common sense. On a superficial basis it might be said that everyone knows what a mother is. Why then, it might be asked, can there be any doubt about what the term "mother" means in law. However, a commonly accepted and common sense understanding of what a word may mean may come to be challenged by, amongst other things, scientific change. Leaving aside altogether meanings of "mother" or "motherhood" which are concerned with changes in legal status brought about by fostering, informal adoption or, most importantly, legal adoption, it may well have been the case that no reasonable person would have entertained any doubt about what the word "mother" meant until relatively recent times. It is true that the word "mother" might well have been applied, with an appropriate prefix, to a foster mother or an adoptive mother. However, everyone would have understood that the person concerned had only acquired their status by reason of the events giving rise to their having charge over the child concerned. The term "natural mother" would always have been understood to have a different meaning.

2.9 But would the proverbial man or woman, or indeed child, in the street now have a common understanding of precisely what the term "mother" means in the light of the scientific developments which are at the heart of the issues which arise in this case? It might be said that every child knows what "mother" means. But if the child was old enough to understand the basics of science and was told that one person had provided half (that coming from the female side) of their genetic make up (so that they shared inheritable physical characteristics) while a different person had carried them and given physical birth, would the same child necessarily say that the answer to the question as to who their mother was was obvious? I very much doubt it. Scientific advances whether in understanding or technique can lead to all of us interpreting basic and common terms in a different way.

2.10 But whether such a change affects the legal position (in the absence of legislation) depends on a proper analysis of the law as it stood prior to the scientific change which gives rise to the issue of difficulty. The law often, in very many differing areas, deems things to be so, even though they may not be so. For the purposes of bringing certainty the law may define a particular word as having a very specific meaning for a specific purpose. This may be so even though the common usage of the term may be different or wider or, indeed, narrower. Likewise, there may be good reason for a term being defined in a particular way (for example, to prevent abuse or confusion) even though the definition may not correspond with ordinary usage. It is, of course, the case that language used in all legally binding measures, whether statutory or otherwise, will ordinarily be given its normal meaning. But where a term is defined it will be taken to mean what the definition says even if that is at variance with the commonly accepted usage of the term concerned.

2.11 In that context, of course, it may be possible that a definition of a term becomes outdated. The purpose for which the definition was adopted in the first place may cease to be fulfilled. There may well, in such cases, be an important and urgent need to amend the definition. But unless and until such an amendment is put in place the word remains defined as it is for all the adverse consequences which may flow.

2.12 It seems to me that all of these very general questions arise in a consideration of the difficult issues with which this Court is faced. For all of human (and indeed, one might say, mammalian, history) there was no distinction between what one might call a genetic mother and a birth mother for, as a matter of science, both were necessarily the same person. It would have been not only unnecessary but completely redundant to have two different terms to describe a female who provided part of the genetic material to a child and a female who physically carried and gave birth to that child.

2.13 However, that situation no longer necessarily applies. It will be necessary to turn shortly to what the common law had to say about the meaning of the term "mother" and how that term is used in a number of relevant legislative provisions. But that common law developed long before there was any potential for a distinction between a genetic mother and a birth mother. Likewise, much of the relevant legislation predates the significant recent advancements in reproductive science which lie at the heart of this case.

2.14 The real issues which, in my view, have to be addressed concern the following:-

(a) What was the common law meaning of the term "mother"?

(b) Given that, as will be clear from the relevant legislation to which reference will be made in due course, the term "mother" is not defined, how should the term "mother", as used in that legislation, be interpreted? In particular, can it be said that the provisions of any such legislation have altered the common law meaning of the term "mother"?

(c) To what extent, if any, can it be said that the meaning of the term "mother", whether as used by the common law or as used in any of the relevant legislation, must be required to be interpreted in the light of the scientific fact that there can now be a distinction between a genetic mother and a birth mother?

(d) To what extent, if any, can it be said that the Constitution impacts on any of those question and, if so, in what way?

2.15 In addition, one set of broad considerations needs at least to be considered for the purposes of analysing whether it has any effect on the answers to those questions. The various parties to this appeal went to some length to point out the practical difficulties and real potential for human misery which would flow from the interpretation of "mother" as urged by the other side. Counsel for the genetic parents and the twins urged that the proper meaning of mother was genetic mother. If that be so, countered counsel for the State, what would the situation be in respect of those many women who have had an embryo implanted in them which derived from an ova which was not their own (whether fertilised by a partner or an unknown person)? Does it mean, counsel rhetorically asked, that a child to which such a woman gives birth is not regarded as the child of that woman - that the woman is not the child's mother? What then of the status of that child to whom the woman may give birth but who will not be regarded as her child in law? What of the child's citizenship? What of the many legal rights which a child has in respect of their parent for support, inheritance and under many other headings?

2.16 On the other side, counsel for the State urged that the meaning of "mother" at common law, and now, means birth mother and that there was nothing in any relevant legislation which has changed that fact. On counsel's argument, the legal definition of "mother" was birth mother unless, and until, legislation was introduced to change that situation, although counsel did draw to the Court's attention the fact that there was proposed legislation in precisely that regard under consideration. However, counsel for the genetic parents and the twins countered by pointing to the consequences for persons in a position such as his clients. The same sort of consequences as to identity, citizenship, inheritance and support will apply.

2.17 The practical difficulties identified by counsel on both sides, as potentially stemming from the acceptance by this Court of the other side's argument, all stem from the status of a child by reference to its mother. I use the term "status" in that context to mean legal status rather than social standing or the like. While legal status is not everything, it is important. The law cannot make parents love their children or vice versa. The law cannot alter the feelings which persons may have towards those with whom they share a close familial relationship irrespective of the presence or absence of a formal legal status to that relationship. However, many important legal rights and obligations are dependent in whole or in part on the legal status which a person has. Constitutional rights attaching to the family may be affected. As noted by both counsel, citizenship, support and inheritance rights can be altered. The obligations of adults towards children may be defined or significantly influenced. The status which the law confers, in terms of familial relationship, is, therefore, of significant importance not only in itself but also in the way in which it affects many other rights and obligations. As these proceedings demonstrate, people understandably feel strongly about the status which the law confers on them (or, as in this case, does not). But people also feel strongly about other issues of connection. The often documented search which adults (whether formally adopted or otherwise) make over long periods of time to identify their true origins is testament to that fact as well. There are, therefore, serious issues and arguments which turn on the proper status which the Court attributes in law to individuals.

2.18 To those arguments can be added others. What is to happen in complicated situations, unlike the present case, where there may be a dispute between the genetic parents and the birth mother? To what extent can parties be said to be bound by agreements reached in relation to such matters? To what extent can the Court countenance arrangements which might be regarded as exploitative? The potential list of difficulties is almost endless. That it is beyond the powers of the courts to establish a detailed regime which deals with all of those problems in a respectful and considerate way is, in my view, far beyond doubt. These circumstances cry out for legislation. As long ago as Roche v Roche [2010] 2 I.R. 321, this Court made clear that the absence of modern legislation had the potential to create the very kind of difficulties which have now emerged and which are bound, in many cases, whatever the result of these proceedings, to give rise to much human misery, great legal doubt and no advantage to society as a whole. It is to be regretted that the warning words of this Court, concerning the need for urgent legislation, were not heeded in a more timely fashion, although the prospect that legislation may now be about to be brought forward is to be welcomed. I make this latter point without, of course, in any way commenting on the merits of the specific measures contained in the proposed legislation to which the Court's attention was drawn by counsel for the State and also noting that, since the hearing, the relevant provisions have also, at least temporarily, been removed from the proposed legislation.

2.19 But the position does not end there. Science does not stand still. In this area, indeed, science appears to be advancing at a pace. It is not unreasonable to anticipate that it may be scientifically possible in the relatively near future that a new human being may come into existence without going through the process of birth at all (in any sense of the term "birth" as it would have been traditionally understood). Likewise, it is already the case that it is possible to engineer the genetic material which goes to make up a developing embryo by the introduction of material taken from neither the principal male and female genetic parents. The time may well come when it is at least scientifically possible to clone an individual so that the person concerned could not be said to have a genetic father or a genetic mother in any traditional sense of those terms. The extent to which it may be considered desirable to regulate or even prohibit practises in this area is another matter altogether.

2.20 However, it seems to me that counsel for the amici drew the Court's attention to a very important distinction. Legislative regulation in this area has to deal with two very distinct questions which counsel helpfully termed the "ex ante" and "ex post" situations. The former, or “ex ante”, issues concern the proper regulation of the circumstances in which modern scientific techniques, such as those which arise in this case and such as those which may arise in the future (only some of which I have touched on), are to be controlled or, perhaps, in some circumstances, outlawed. The "ex post" provisions will be needed to deal with the treatment and status of human beings who come into being as a result of such measures.

2.21 Indeed, it seems to me that one of the most difficult questions which any legislation will need to address is the interaction between those two types of measures. Whatever form of regulation is considered appropriate to prevent abuse, exploitation or other practises which may be considered to be undesirable, there is always the risk that a child will come into existence in circumstances which are a breach of those regulations. Such a situation will not be the child's fault. The law will have to deal with that child as that child is. Any legislation needs not only to deal with the proper regulation of practise and methodology in this area but also the proper recognition of the status of children who result from advances in modern science. In the context of new advances in science the law will have to deal with the problem of what to do in circumstances where, in breach of whatever regulation may be put in place, a new human being has come into the world. That is not an easy legislative task but one thing is clear – the courts cannot make up the sort of detailed rules that are necessary to ensure a humane, workable and coherent system. Even if it were constitutionally permissible for the courts to attempt such a task (which it most clearly is not) same could only be done on a case by case basis as issues arise. The uncertainty that would prevail until the case law had settled down (if it ever truly could given that it would be dealing with a constantly evolving scientific frontier) would lead to its own substantial cost in human misery (not least those of children) and the high likelihood of unnecessary disputes, in a whole range of areas from succession to citizenship, which would likely be hugely costly both in human and monetary terms.

2.22 I have drawn attention to these factors simply to emphasise that I do not believe that the courts are in any way unaware of the need to bring certainty to these areas but also to emphasise that the courts are, on any view, not best placed to achieve that end.

2.23 But there has not been legislation, despite this Court drawing attention to the emerging problems in Roche. This Court must, therefore, do the best it can. It must determine the proper meaning of the term "mother" for the purposes of registration in the context of the existing law, having regard both to the common law, the relevant legislation, and, to the extent that it may be relevant, the Constitution. That the answer to that question is almost certainly going to be highly unsatisfactory cannot be doubted. But the only truly satisfactory solution can be achieved by legislation. Having identified those issues, I think it is appropriate to start by considering the way in which the trial judge addressed them.

3. The Findings of the Trial Judge
3.1 In order to fully understand the issues with which Abbott J. was confronted, it is necessary to briefly introduce the principal argument relied on, on behalf of the State, both before the High Court and this Court. The Latin maxim mater semper certa est (the mother is always certain) ("mater semper") is suggested by the State to represent the traditional position at common law. On that basis, the State argued that the historical legal position was that the person giving birth to a child was treated, as a matter of law or definition, to be the child's mother. There were, obviously, issues between the parties in the High Court as to whether the maxim truly represented the common law position in Ireland or, indeed, if it did, what precisely it meant. In addition, there were questions as to whether, even if the maxim as interpreted in the manner contended for by the State represented the common law position, that position had been altered either by legislation or by virtue of the requirements of the Constitution. That broad overall picture represents the backdrop against which the judgment of Abbott J. needs to be viewed.

3.2 The earlier part of the judgment is concerned with setting out the issues, the evidence and the submissions of the parties. Abbott J.’s conclusions can be found from para. 95 of his judgment, onwards. However, the trial judge began by addressing the argument which came under the broad heading of epigenetics. Up until recent times it had been widely thought that the influence of chromosomal DNA was the sole influence on the identity and development of a foetus. Epigenetics suggests that other factors, such the transfer of microchimeric cells from mother to baby and drug abuse during pregnancy, can also influence the genetic make-up of a child. However, having considered the evidence adduced on this issue, Abbott J. was satisfied that “the influence of such epigenetic occurrences is not of such significance as to alter 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” and that “it is most unlikely that epigenetics will ever trump the deterministic quality of chromosomal DNA.” No appeal has been brought against that finding.

3.3 Abbott J. addressed the status of the maxim mater semper between paras. 100 and 106. It was suggested that the maxim, in expressing a historically incontrovertible truth, became an irrebuttable presumption of law and of fact. The trial judge later noted that mater semper was not positively affirmed in any legislative context. The international position of the maxim was also briefly averted to. In addition, Abbott J. suggested that, in the absence of a legislative intervention outlawing such arrangements, a surrogacy agreement could not be deemed illegal nor give rise to any criminal or civil wrong.

3.4 Abbott J. then rejected the argument put forward by counsel for the State to the effect that the introduction of Article 40.3.3. into Bunreacht na hÉireann provided constitutional recognition of what was argued to be the pre-existing situation, insofar as that Article uses the term “mother” by reference to the person who carries a child during pregnancy. Referring to the decision of this Court in Roche, (particularly the judgments of Fennelly and Geoghegan JJ), the trial judge concluded that the word mother in Article 40.3.3 had a meaning specific to that Article itself, and that any meaning attributable to the term "mother" in that article was temporally limited to the period which a foetus spends in the womb.

3.5 Abbott J. expressed the view that the concept of “blood relationships or links” was paramount in deciding parenthood and found support for this view in the judgments of Fennelly J. in N v. Health Service Executive [2006] 4 I.R. 374 and J.McD. v P.L [2010] 2 I.R. 199. In the context of paternity, it was observed that such a link could be definitively proved by a blood test under the Status of Children Act 1987 ("the 1987 Act"). Abbott J. equated such “blood relationships or links” with the genetic material inherited by a child from its genetic parents, and that, therefore, the inquiry as to maternity ought also to be made on a genetic basis. At para. 103, he held:

“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.

In his view, to do otherwise, and treat the determination of maternity and paternity differently, would be “invidious, irrational and unfair”. This conclusion was said to be supported by the provisions of the Adoption Act 2010 ("the 2010 Act") in relation to the counselling afforded to a mother proposing the adoption of her child as to the importance of knowing the child’s genetic makeup.

3.6 Abbott J. then turned to the constitutionality of the maxim’s application as an irrebuttable presumption. Having cited the judgment of O’Hanlon J. in S. v. S. [1983] 1 I.R. 68, which dealt with an irrebuttable presumption of paternity within marriage, Abbott J. concluded that “the presumption of mater semper certa did not survive the enactment of the Constitution insofar as it applies to the situation post IVF”. Although this did not raise a consideration of the best interests of the child, it was observed that this would “in most cases, if not in all, … be best served by an inquiry of the genetic interest.”

3.7 In summary, therefore, Abbott J. accepted that the maxim mater semper did form part of the common law in Ireland and was to be interpreted as meaning that a woman giving birth to a child was irrebuttably presumed to be its mother. However, that legal position at common law did not, in Abbott J.'s view, survive the adoption of the Constitution so that the maxim, constitutionally construed, must now be taken merely to give rise to a rebuttable presumption.

3.8 Abbott J., therefore, ordered that the genetic mother was the mother of the twins and that she had an entitlement to have particulars of her maternity entered on the certificates of birth of the two children. The trial judge also ordered that the twins had a corresponding right to have their genetic mother recorded on their birth certificates as their mother.

3.9 Against that background, it is next appropriate to turn to the position adopted by the parties on this appeal.


4. The Position of the Parties
4.1 The State argued on this appeal that the trial judge erred in a number of his conclusions. In particular, it was said that Abbott J. was incorrect in his findings on the “determinative nature of chromosomal DNA” in relation to parenthood for the purposes of the law, and his finding that the maxim mater semper did not survive the enactment of the Constitution.

4.2 It was said by the State that the trial judge erred in characterising the maxim as an irrebuttable presumption of law. Thus, in applying the judgment of O’Hanlon J. in S. v S., to the facts of this case, Abbott J. was said to have erred. Rather, the State argued that the maxim is an established legal fact, which has been recognised in the common law, enshrined in the Constitution and reflected in case-law.

4.3 In support of the common law argument, counsel referred to the decision of the House of Lords in The Ampthill Peerage [1977] A.C. 547, and the comments of Walsh J. in O’B. v S. [1984] I.R. 316. It was further said that the legal status of the maxim in Ireland was recognised by the European Court of Human Rights in Johnston v. Ireland [1987] 9 E.H.R.R. 203.

4.4 The State contended that reference to “mother” in Article 40.3.3 of the Constitution can only be referable to the birth mother and, by virtue of the doctrine of harmonious interpretation, that definition should be read into the Constitution as a whole. Such a construction, it was said, supports the constitutional status of the maxim. The decisions of this Court in Roche and Attorney General v. X [1992] 1 I.R. 1 were also said to equate the birth mother with legal motherhood.

4.5 The State further argued that the High Court judgment in effect removed the status of parenthood from a birth mother immediately following birth and, in so doing, failed to give recognition to the constitutionally recognised natural link between a child and its birth mother and the vital role played by a woman in giving birth to a child. In this regard, the State cited the various judgments delivered by this Court in G v. An Bórd Uchtála [1980] I.R. 32.

4.6 In equating blood link with genetic link, the State submitted the trial judge fell into error. It was said that this conclusion failed to adequately take into account the differences between men and women and their respective roles in reproduction. The State contended that the judgment of Fennelly J. in J.McD. v. P.L. [2010] 2 I.R. 199, being a case concerning the rights of a sperm donor, does not support the conclusion that blood relationships are paramount in deciding both maternity and paternity. Similarly, it was argued that this Court, in N v. HSE [2006] 4 I.R. 374, did not have in mind the possibility of there being both a gestational and genetic mother and, thus, it was said that the comments in the judgment in that case cannot be seen as being determinative on the applicability of a blood link or genetic test.

4.7 On the 1987 Act, counsel for the State submitted that the same was not drafted with the intent or knowledge that it would be used to resolve disputes in a surrogacy scenario. It was said that it would, therefore, be wrong for this Court to attempt to apply its provisions in determination of the issues in this case which, of course, are solely concerned with the identity in law of a mother. Rather, the State argued that the intent of the 1987 Act, insofar as it relates to declarations of maternity, was to identify the mother in situations such as a fraudulent claim of maternity or a mix-up of new born babies in a maternity ward. It was argued that any fundamental change in the law, such as that contended for by the genetic parents, would have to have been clearly signalled in the 1987 Act. It was argued that no such clear wording is to be found in the legislation. In addition, counsel pointed to the Civil Registration Act, 2004 ("the 2004 Act"), which, although not defining the term “mother”, uses the term, it was said, in the sole context of a birth mother and, thus, is a recognition and an application of the maxim mater semper.

4.8 The State also drew attention to the many policy issues which arise in relation to surrogacy arrangements. As has already been noted these include the desirability, or otherwise, of surrogacy arrangements being governed solely by private agreement between the respective parties, the risk of the commodification of both women and children, and the possibility of a legal vacuum being created if the maxim is held to be no longer applicable. The State, therefore, argued that there is a risk of the Court usurping the role of the Oireachtas in this regard and that the Court should adopt a deferential approach and wait for legislation to regulate this issue.

4.9 Finally, the State contended that any prejudice suffered by the application of the maxim to the genetic parents in this case could be remedied by an application to adopt the twins. Both the State and the R family expressly rejected the notion that two women can simultaneously be regarded as the legal mother of a child.

4.10 The fundamental position adopted by the R family was that the provisions of the 1987 Act govern this dispute. Counsel for the R family argued that the maxim mater semper was never recognised in Irish law and that there is no binding recognition of the maxim in this jurisdiction. In the alternative, it was argued that the effect of the 1987 Act, in updating the law as to declarations of parentage, was to introduce genetic testing as the accepted method of determining parenthood, whether that be paternity or maternity. This was said to be so because parentage of a child is, under that Act, to be determined by the presence or absence of inheritable characteristics. In so doing, it is said that the 1987 Act overruled the maxim insofar as it still might have applied until that point in time. Although counsel accepted that this scenario may not have been forefront in the minds of the drafters of the 1987 Act, he argued that such is the effect of the relevant provisions, and that, in the absence of some unconstitutionality or other legislation directly governing this area, the Court is constrained to apply the terms of the 1987 Act.

4.11 The R family argued that such an interpretation is consistent with the Constitution, and that a failure to so construe the provisions of the 1987 Act would constitute a failure to protect and vindicate their constitutional rights. In particular, it is said that, if the 1987 Act were not applicable, they would be deprived of the protections afforded to the constitutional family under Articles 41 and 42 of the Constitution.

4.12 The R family did not accept the submission that Article 40.3.3 provides an answer to the question of the constitutional meaning of motherhood for all purposes. In this regard, the provisions of the Adoption Act, 2010, which allow for a woman who gives birth to be no longer treated as that child’s mother, were noted. The R family supported the conclusions of Abbott J. to the effect that the temporal scope and effect of Article 40.3.3 is limited to the period the child is in the womb and referred to passages from the judgments of the members of this Court in Roche as authority for that proposition.

4.13 The R family contended further that both the existence and importance of the blood link between a child and his or her genetic parent has been recognised in many judgments of this Court. These were said to include J.K. v. V.W. and Others [1990] 2 I.R. 437 and N v. Health Service Executive. It was said that the judgment of Fennelly J. in J.McD. v P.L. makes it clear that the term “blood link” is properly understood as being the sharing of genetic material.

4.14 If the genetic parents were to fail in their basic claim, it was suggested as a fallback position that it was appropriate that they be appointed guardians of the twins, either pursuant to section 6A of the Guardianship of Infants Act, 1964, as amended, or pursuant to the inherent jurisdiction of the court. It was said that the Court has the inherent jurisdiction to do all things necessary to defend and vindicate the personal rights of a child and D.G. v. The Eastern Health Board [1997] 3 I.R. 511 was cited in support of this proposition.

4.15 At the hearing, the birth mother adopted the submissions of the R family. On the question of the maxim mater semper, the birth mother submitted that such a rule of law ought to continue to operate, but on the basis of it being a rebuttable presumption capable of being rebutted on a case by case basis. The birth mother argued that, in this case, the presumption should be rebutted in favour of the genetic mother.

4.16 The amici presented a joint oral submission at the hearing. However, both had lodged individual written submissions with each focusing on their respective areas of expertise, being respectively whether, and to what extent, the operation by an tArd Chláraitheoir of mater semper as an irrebuttable presumption or rule of law was compatible with relevant constitutional principles and requirements of equality in relation to the individuals involved and whether the rights of the individuals involved under Articles 40.3, 41 and 42 of the Constitution have been violated by operation of the maxim in the manner contended for by the State. Both amici argued that Article 40.3.3 does not require the recognition of a birth mother as constitutional mother in all circumstances and that, particularly in the circumstances of this case, it does not so require. It was also submitted that, while the agreement between the parties may not be legally enforceable, there is nothing illegal about the agreement in the absence of legislation prohibiting or regulating such an agreement. Both amici place significant reliance on various decisions of the European Court of Human Rights ("ECtHR").

4.17 The Equality Authority accepted that no indirect discrimination necessarily arose from the relevant legislative provisions, and that the 1987 Act was capable of recognizing the rights of the genetic mother in the circumstances of this case. Rather, it contended that it was the application of the maxim mater semper as an irrebuttable presumption by An tArd Chláraitheoir which gave rise to breaches of the equality guarantee contained in Article 40.1 of the Constitution. The Equality Authority submitted that Article 40.1 required that the maxim operate only as a rebuttable presumption. If not so operated, it was contended that there was unjustifiable discrimination on the grounds of gender equality – in treating genetic mothers and genetic fathers differently – disability equality – in treating the genetic mother with a reproductive disability differently from a genetic mother with no such disability – and children’s equality – in that the best interests of the children in this case are said not to be protected unlike the interests of children born through a non-surrogacy arrangement.

4.18 The Irish Human Rights Commission based their submission on the right to beget children as recognised by Costello J. in Murray v. Ireland [1985] I.R. 532. Counsel on their behalf submitted that, having failed to regulate in this area, it is not now open to the State or its organs to deny both the genetic parents and the twins the rights afforded to members of a constitutional family under Articles 41 and 42 of the Constitution. It was also said that the failure to recognize the primary care givers in this case, that is, the genetic parents, and the resultant divergence between the practical and legal realities, fails to protect the best interests of the twins as guaranteed by Article 40.3 of the Constitution.

4.19 Against the backdrop of those submissions it seems to me to be appropriate to turn first to the question of seeking to identify the historical position at common law in Ireland concerning the definition of who might be said, in law, to be a mother.

5. The Common Law in Ireland on Motherhood
5.1 The legal authority on the question of the definition of motherhood in the common law as it is understood in Ireland is, in my view, extremely limited. Attention was drawn on behalf of the State to the judgment of Walsh J. in O'B v. S, and, in particular, the highlighted part of the following sentence on p. 338:

“In so far as it deals with the question of the obligation to establish the relationship between the mother and the child which was necessary under Belgian law, that point does not arise in this jurisdiction as the maxim mater semper certa est did not apply in Belgian law but 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.” (emphasis added)

5.2 First, it should be noted that Walsh J. does not appear, in the passage cited, to suggest that the maxim mater semper applied in Ireland by virtue of the common law, but rather suggests that it applies in Ireland by virtue of the relevant provisions of the Births and Deaths Registration Act (Ireland), 1880 (“the 1880 Act”). The sections of the 1880 Act cited by Walsh J. are as follows:-

"s.1 – In the case of every child born alive after, or whose birth has not been registered previous to the commencement of this Act, 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 on the particulars required to be registered concerning such birth, and in the presence of the registrar to sign the register.

s.7 In the case of an illegitimate child no person shall, as father of such child, be required to give information under this Act concerning the birth of such child, and the registrar shall not enter in the register the name of any person as father of such child, unless at the joint request of the mother and of the person acknowledging himself to be the father of such child, and such person shall, in such case, sign the register, together with the mother.

s.28 An entry, or certified copy of an entry, of a birth or death in a register under the principal Act, or in a certified copy of such a register, shall not be evidence of such birth or death, unless such entry either purports to be signed by some person professing to be the informant, and to be such a person as is required by law at the date of such entry to give to the registrar information concerning such birth or death, or purports to be made upon a certificate from a coroner, or in pursuance of the provisions of this Act with respect to the registration of births and deaths at sea, or in pursuance of section six of this Act.

When more than three months have intervened between the day of the birth and the day of the registration of the birth of any child, the entry or certified copy of the entry made after the commencement of this Act of the birth of such child in a register under the principal Act, or in a certified copy of such register, shall not be evidence of such birth, unless such entry purports,-

(a) If it appear that not more than twelve months have so intervened, to contain a marginal note that a statutory declaration has been made by a properly qualified informant;

(b) If more than twelve months have so intervened, to have been made with the authority of the Registrar General, and in accordance with the prescribed rules.

Where more than twelve months have intervened between the day of a death or the finding of a dead body and the day of the registration of the death or finding of such body, the entry or certified copy of the entry made after the commencement of this Act of the death in a register under the principal Act, or in certified copy of such register, shall not be evidence of such death, unless such entry purports to have been made with the authority of the Registrar General, and in accordance with the prescribed rules."

5.3 It is clear, therefore, that s.1 simply imposes a duty on "the father and mother" of a child to give appropriate details and to sign the relevant register. Section 7 provides that in the case of persons then regarded as illegitimate, no father is to be registered except on the joint request of "the mother and of the person acknowledging himself to be the father" of the child concerned. Section 28 simply provides that entries in the register can be evidence provided the conditions specified in that section are met.

5.4 It may be possible to discern a distinction between the use of the term "mother" and the use of the term "the person acknowledging himself to be the father" in the case of an illegitimate child. No such qualification is applied to the father of a legitimate child but, of course, at that time, the husband was presumed to be the father of any legitimate child.

5.5 In any event, it seems to me that, on a full reading of the judgment of Walsh J. in that case, the real question with which that aspect of his judgment was concerned was to contrast the position which applied in Ireland to that which applied in Belgium. On the basis of the judgment, it would appear that Walsh J. was satisfied that, in Belgian law at that time, the relationship between an unmarried mother and her child was not established as a matter of law without proper registration. In contrast, the position in Ireland was that registration was not necessary in order for the status of a mother and her child to be established. This was and is because the law confers status without the necessity of registration. Registration is a matter of obligation and can provide evidence but is not a prerequisite to establishing status. To the extent, therefore, that the passage from the judgment of Walsh J., which I have cited, might be taken to be an indication that the maxim mater semper formed part of Irish law, it seems to me that the judgment is only of very limited authority in that regard.

5.6 Likewise, what is said to be the recognition by the ECtHR of the maxim as representing the law in Ireland which is to be found in Johnston v. Ireland, is no more than that court noting what was then said by the parties to the case to be the legal position in Ireland without any reference to supporting authority. At para. 25 of its judgment, the ECtHR observed:

“In Irish law, the principle mater semper certa est applies: the maternal affiliation of an illegitimate child, such as the third applicant, is established by the fact of birth, without any requirement of voluntary or judicial recognition.”

5.7 Academic commentary has questioned the extent to which it can properly be said that the maxim forms part of Irish law at all. For example, Dr. Maebh Harding in her chapter “Surrogacy in Ireland” in K. Trimmings and P. Beaumont, International Surrogacy Arrangements: Legal Regulation at the International Level, (2013, Hart Publications) argues that, in the absence of legislation expressly providing for a legal presumption in favour of a birth mother, the legal definition of “mother” in Irish law is unresolved. Although she concedes that the maxim formed part of Roman law, she contends that the principle does not exist in the common law tradition:

“While a presumption in favour of the gestational mother is present in Roman law, there is no such principle in the common law tradition. Common law texts set out principles of legitimacy which make reference only to the father.”

She refers to another academic paper (C. Baldassi, “Mater Est Quam Gestatio Demonstrat: A Cautionary Tale”, 27th June 2007) in support of this proposition. She also suggests that the comments of Walsh J. in O’B v S are obiter. In the alternative, she argues that, even if such a presumption is held to exist in favour of a birth mother, it could be rebutted by genetic evidence through the machinery of the Status of Children Act, 1987.

5.8 It follows that there is only sparse and limited authority for the proposition that the maxim mater semper ever formed part of the common law of Ireland. But it is, perhaps, equally if not more important to consider what the maxim, to the extent that it might be considered to have formed part of the law of Ireland, could be said to have meant. Some criticism was advanced on behalf of the State with the characterisation by the trial judge of the maxim as being an irrebuttable presumption of law rather than a definition or statement of legal fact. I am far from convinced that there is, in reality, any great difference between the two concepts. A rebuttable presumption is, of course, a different thing altogether. A rebuttable presumption merely defines a default position which is to apply unless and until somebody establishes, in the appropriate way, that the presumed matter is not in fact so. But if a presumption is stated to be irrebuttable, for whatever reason, then it amounts to a definition for all legal purposes. Indeed, it seems to me that the term definition as a matter of law is more appropriate than the term irrebuttable presumption for there is little of the "presumption" in a proposition which the law does not allow to be contested.

5.9 It seems to me, therefore, that the real question which needs to be addressed is as to whether the common law of Ireland defined the term "mother" as applying only to a woman who gave birth to a child. I am not satisfied that it did.

5.10 In that context, it is appropriate to consider two different possibilities. The first is that the law defined, as mother, the person who provided the female side of the genetic material that went to make up a child. While the state of scientific knowledge in respect of the precise manner in which characteristics were inherited changed over the centuries, the predominant view, at least since the earlier part of the 19th century, was that genetically inherited characteristics came from both father and mother and were, in some way, inherent in both parents (contrary to the theories espoused by those such as Lamark who suggested that acquired characteristics could be inherited). It is true that the precise mechanism by which characteristics were inherited did not become clear until the earlier work of Mendel became more widely known from the publication of separate research by de Vries, Correns and Von Tschermak in the spring of 1900. Prior to that most biologists considered that the traits of both parents were blended in some fashion. But the precise mechanism by which genetic inheritance took place was not really relevant to the overall question of whether characteristics were inherited from both parents. Such a view had ultimately prevailed over the alternative strand of thought, which suggested that inheritance was solely from the male with the female simply nurturing and carrying the offspring to birth. Against the background of an acceptance that any child inherited its characteristics from both male and female parent, how would a legal definition of a mother have worked? In any age prior to the recent past and prior to the recent developments in reproductive science which are at the heart of this case, a definition of a mother which equated motherhood with the provision of genetic material would have, as a matter of certainty, treated a person who could be shown to have given birth to a child as its mother. But that would have been so not because the person giving birth was, by legal definition, the mother, but rather because it was, in the light of the state of scientific advancement at that time, a matter of scientific certainty that the person who gave birth was also the person who gave the female genetic material to the child.

5.11 Thus, even if the proper definition of a mother as a matter of law were taken to have been the "genetic mother", a maxim of mater semper would have been equally applicable, for it would have been "certain" that the birth mother was the person who had provided the relevant genetic material. There is nothing, therefore, in my view, inconsistent with a legal rule which treated a genetic mother as being the mother with a maxim which recognised the scientific certainty that the birth mother was the person who was the genetic mother.

5.12 An acknowledgment that a person giving birth was certainly the mother is, therefore, equally consistent with the mother being defined as the birth mother or being defined as the genetic mother.

5.13 In the light of that analysis, I am not satisfied that the common law, in defining the identity of a mother, made any distinction between a birth mother and a genetic mother. The maxim mater semper was simply a recognition of the fact that, in the light of the state of science at that time, the birth mother and the genetic mother were necessarily one and the same person. It seems to me to be a significant over-interpretation of the maxim to suggest that it sought to define mother as birth mother as opposed to recognising that the genetic mother and birth mother were necessarily one and the same person and that the identity of both the birth mother and the genetic mother could, therefore, be definitively determined by identifying the person who gave birth. I am not, therefore, satisfied that the common law in Ireland defined mother in a way which confined that term to birth mother to the exclusion of genetic mother. I will return to the consequences of that conclusion in due course. However, as pointed out earlier, the next question which must logically be addressed is as to the effect, if any, of relevant legislation on the common law position. I, therefore, turn to that question.

6. The Legislation
6.1 Section 35 of the 1987 Act provides for declarations of parentage by a court in the following terms:-

“(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.

(2) An application may be made under subsection (1) of this section notwithstanding the fact that any person named in the application as the father or the mother or a parent, as the case may be, is not, or may not be, alive.

(8) Where on an application under this section it is proved on the balance of probabilities that—

(a) a person named in the application is the father, or

(b) a person so named is the mother, or

(c) persons so named are the parents,

of the applicant, the Court shall make the declaration accordingly.

(9) Any declaration made under this section shall be in a form to be prescribed and shall be binding on the parties to the proceedings and any persons claiming through a party to the proceedings, and where the Attorney General is made a party to the proceedings the declaration shall also be binding on the State.”

6.2 A court can direct that blood tests be taken to assist the court in its determination under s. 38(1) of the 1987 Act:

“(1) In any civil proceedings before a court in which the parentage of any person is in question, the court may, either of its own motion or on an application by any party to the proceedings, give a direction for the use of blood tests for the purpose of assisting the court to determine whether a person named in the application or a party to the proceedings, as the case may be, is or is not a parent of the person whose parentage is in question, and for the taking, within a period to be specified in the direction, of blood samples from the person whose parentage is so questioned, from any person alleged to be a parent of that person and from any other person who is a party to the proceedings, or from any of those persons.”

6.3 Blood tests are defined in s. 37 as “any test carried out under this Part and made with the object of ascertaining inheritable characteristics”.

6.4 Section 40(2) sets out the contents of a report resulting from a blood test under s. 38 as follows:-

“(2) The person under whose control blood samples are to be tested by virtue of subsection (1) of this section shall make to the court by which the direction was given a report in which he shall state—

(a) in relation to each person from whom blood samples were so taken, the results of the tests, and

(b) in relation to each person (other than the person whose parentage is in question) from whom blood samples were so taken—

(i) whether the person to whom the report 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,

and the report shall be received by the court as evidence in the proceedings of the matters stated therein.”

6.5 Section 19 of the 2004 Act, as amended, deals with the obligation to register the birth of a child. This section, insofar as is relevant, provides:

“(1) Subject to the provisions of this Part, when a child is born in the State, it is the duty of—

(a) the parents or the surviving parent of the child, or

(b) if the parents are dead or incapable through ill health of complying with this subsection, each other qualified informant, unless he or she reasonably believes that another qualified informant has complied with it in relation to the birth, not later than 3 months from the date of the birth—

(i) to attend before any registrar,

(ii) there, to give to the registrar, to the best of his or her knowledge and belief, the required particulars of the birth, and

(iii) there, to sign the register in the presence of the registrar.

(3) Where, owing to non-compliance with subsection (1), a birth is not registered and, having made reasonable efforts to do so, the Superintendent Registrar in whose registration area the birth occurred is unable to contact either parent of the child concerned, the Superintendent Registrar may give a qualified informant a notice in writing requiring the informant—

(a) to attend before a registrar in that registration area, at the office of the registrar or such other (if any) convenient place as may be specified by the Superintendent Registrar on or before a day so specified (not being less than 7 days from the date of the notice nor more than 12 months from the date of the birth),

(b) there, to give to the registrar, to the best of his or her knowledge and belief, the required particulars of the birth, and

(c) there to sign the register in the presence of the registrar,

and, unless the birth is registered before the date of the attendance aforesaid, the informant shall comply with the requirement.

(4) Where paragraphs (i) to (iii) of subsection (1) or, as the case may be, paragraphs (a) to (c) of subsection (3) have been complied with in relation to a birth, the registrar concerned shall register the birth in such manner as an tArd-Chláraitheoir may direct.…”

6.6 The required particulars are set out in Part 1 of the First Schedule to the 2004 Act, as amended. In relation to the parents of a child, these particulars include:

“Forename(s), surname, birth surname, address and occupation of mother.

Former surname(s) (if any) of mother.

Date of birth of mother.

Civil status of mother.

Personal public service number of mother.

Birth surname of mother's mother.

Forename(s), surname, birth surname, address and occupation of father.

Former surname(s) (if any) of father.

Date of birth of father.

Civil status of father.

Personal public service number of father.

Birth surname of father's mother.”

6.7 Section 63 of the 2004 Act deals with the correction of errors in a registrar:

“(1) An alteration shall not be made in a register maintained under paragraph (a), (b) or (d) of section 13(1) otherwise than in accordance with the provisions of this Act.

(2) On the application in that behalf of a person having an interest in the matter to a Superintendent Registrar in writing, he or she may—

(a) correct in the manner specified by an tArd-Chláraitheoir a clerical error in any register maintained under section 13, or

(b) correct an error of fact in a register specified in the said paragraph (a) or (d) if the person gives to the Superintendent Registrar such evidence as he or she considers to be adequate and a statutory declaration, in a form standing approved by an tArd-Chláraitheoir, of the facts concerned made by—

(i) a person required by this Act to give to the registrar the required particulars in relation to the birth, or death, concerned, or

(ii) if such a person as aforesaid cannot be found, two credible persons having knowledge of the facts concerned.”

6.8 In addition some mention should be made of s. 2 of the Guardianship of Infants Act, 1964 which defines ‘mother’ as including a “female adopter under an adoption order”.

6.9 There is no doubt that the focus of the 1987 Act is on genetic inheritance. Section 35(8) is mandatory in form and provides that a court "shall" make a declaration of parentage where it is proved on the balance of probabilities that a specified person is the mother of a particular child. Such a declaration is binding not only on the parties but others by virtue of subsection (9). That provision does not, of course, of itself convey any particular meaning as to the term "mother".

6.10 Section 38 allows the Court to give a direction for the use of blood tests "for the purpose of assisting the Court to determine whether a person named in the application or a party to the proceedings […] is or is not a parent" of a relevant person. A blood test is defined in s.37 as meaning any test made with the object of "ascertaining inheritable characteristics". The results of a blood test are required to be set out in a report which must state, in respect of any person sampled (with the exception of the person whose parentage is in question), whether that person is or is not excluded from being a parent or, if not so excluded, the value of the results in determining parentage.

6.11 It is true, as counsel for the State argued, that the 1987 Act does not, in express terms, specify that parentage can only be determined by virtue of the establishment of a blood link or inheritable characteristics. On that basis counsel argued that the 1987 Act could not be said to have altered the common law definition of a "mother". In answer to the question as to what the point would be of elaborate provision being made for blood tests together with their receipt in evidence, in cases involving not only a dispute as to who the father might be (in which case the use of such tests was obviously of significant potential value) but also in the case of disputed motherhood, counsel suggested that such tests might be relevant in a limited number of cases where there was doubt as to the true birth mother (such as cases involving a mix-up in a maternity hospital or an abandoned child).

6.12 That being said, it does have to be acknowledged that the 1987 Act does seem to imply that, at a minimum, blood tests will play an important role in determining parentage, not just in the case of fathers but also in the case of mothers. It is true that the scientific advances which have given rise to the difficulty in this case (being the possibility of the separation of the identity of a genetic mother and a birth mother) were in their early stages at the time the 1987 Act was adopted. It is perhaps worthy of some note that the 1987 Act was closely modelled on equivalent United Kingdom legislation, the Family Law Reform Act, 1969, which was enacted well before those scientific developments occurred.

6.13 This is, of course, a case in which the parentage of the twins is in issue. It is clear that in such a case the Court could, had there been any dispute about the matter, have directed appropriate tests in accordance with s.38(1) of the 1987 Act and would, doubtless, have received back a report which would have made clear that the genetic mother was certainly just that. To use the language of s.40 of the 1987 Act, which deals with the contents of the relevant report, it seems almost certain that such a report would have specified that the genetic mother, far from being excluded, was in fact the mother to an extremely high level of likelihood amounting, in practise, to a certainty. Faced with such a report, on what basis could a court do other than conclude that the genetic mother was the mother of the twins?

6.14 It might be said that the Court could, provided it was satisfied as a fact that the twins had been given birth to by the birth mother, nonetheless conclude that the genetic mother was not the mother as defined in law by reason of the proper legal definition of the term "mother".

6.15 On balance, I have come to the view that, while the 1987 Act places a high weight on the existence of genetics, and, thus, inherited characteristics, it does not do so to the point of altering the definition of a mother as defined in law. If such were to be the case, then it seems to me that the Act would have needed to have gone further and have expressly altered that definition.

6.16 That leads to a consideration of the 2004 Act. Section 19 of that Act places a duty on parents, within three months of the date of the birth of a child, to give appropriate particulars of the birth. In that regard it is similar to the 1880 Act cited by Walsh J. in O'B v. S. The relevant particulars required are set out in part 1 of the first schedule of the Act and include the name of the mother and various other details concerning the mother.

6.17 On that basis it is argued that the term "mother" must, in that context, mean birth mother rather than genetic mother for, if they be different, the genetic mother might not necessarily even know of the birth so as to be in a position to meet the obligation to register.

6.18 There certainly seems to be a significant argument in favour of the proposition that the person on whom the obligation to register lies is, at least predominantly, the birth mother in any case in which there may be a distinction between the birth mother and the genetic mother. However, for like reasons to those which I analysed in the context of the 1987 Act, I am not satisfied that the 2004 Act can be said to affect a change in any pre-existing legal definition of the term "mother", in the absence of clear and express terminology used in that Act such as would demonstrate an intention on the part of the Oireachtas to alter the legal definition of "mother".

6.19 I have, therefore, come to the view that neither the 1987 Act nor the 2004 Act can be said to be couched in sufficiently clear terms to alter any previously existing common law definition of "mother". Undoubtedly, the 1987 Act emphasises genetic connection and inherited characteristics. Equally, the 2004 Act emphasises the woman giving birth. But neither does so in a way which establishes a clear intent to alter the legal definition of "mother". Against that background, and before considering any constitutional issues, it seems to me to be necessary to return to the common law position.

7. The Common Law Position
7.1 For the reasons which I have already sought to analyse, I am not satisfied that the maxim mater semper governed the common law of Ireland or at least did so in a way which defined only a birth mother as the mother of a child.

7.2 On the contrary, it seems to me that the common law regarded, as mother, both the genetic mother and the birth mother for, at the time when that common law evolved, there was no scientific possibility of those roles being carried out by two different persons. The law did not make a distinction between a birth mother and a genetic mother because science, to that point in time, could not separate the two roles. The 1880 Act simply recognised that scientific fact.

7.3 It follows, it seems to me, that the common law regarded both the genetic mother and the birth mother as being the mother of a child for the simple reason that there was, in practical reality, no distinction between them. For the reasons already analysed, I am not satisfied that the language of either the 1987 Act or the 2004 Act was sufficiently clear to alter that pre-existing position. What then is the consequence for the meaning of the term "mother" (unless specifically defined for a particular purpose in a particular statutory context) of the development of reproductive techniques which now allow those two roles to fall on different persons. That seems to me to be the real question which lies at the heart of this case. The law did not distinguish between a birth mother and a genetic mother because there was no distinction in scientific fact. Now that there is a distinction in scientific fact how does that previous legal definition apply? Before answering that question it is necessary to consider the extent, if any, to which the Constitution may have an impact on that issue.

8.0 The Constitutional Position
8.1 A starting point for the consideration of any possible constitutional impact on the issues which arise in this case must be the constitutional position of the family specified in Art. 41 of the Constitution. Article 41.1.1 recognises the family as the natural primary and fundamental unit group of society. The term "family" is not expressly defined in the Constitution but it does need to be noted that Art. 41.3 refers to the institution of "Marriage" "on which the Family is founded". It must be recalled that, for much of the life of the Constitution, the former Art. 41.3.2 prevented the enactment of any law providing for the grant of dissolution of marriage. The case law on the meaning of the family which predates the amendment to the Constitution which first permitted divorce must be seen in the light of a constitutional regime where marriage was indissoluble. It is also true that the European Convention on Human Rights recognises a broader range of units as being properly regarded as a family. Furthermore, it may well be said that one of the greatest changes in social conditions in Ireland over the last quarter of a century has been a radical alteration in what might ordinarily be understood by mainstream opinion as constituting a family.

8.2 As the matter was not argued it would be inappropriate to express any view as to whether the question of the proper definition of the term "family" as it is used in the Constitution needs to be revisited. At a minimum, it may be necessary to consider what the effect of the removal of the constitutional prohibition on divorce is on a harmonious interpretation of the relevant provisions of the Constitution. It is true, of course, that the constitutional regime now contemplates the possibility that persons may remarry after divorce. Thus, the presence of divorce does not necessarily mean that the family can be said to exist, from a constitutional perspective, outside marriage. On the other hand, there are difficult questions. Where a person is divorced and has remarried, what family, from a constitutional perspective, does that person now belong to? Clearly, as far as their spouse is concerned, it is the person to whom they are now married. But what about children from an earlier marriage? What family are they a part of? The definition of "marriage" in a constitutional context given by Costello J. in Murray v. Ireland [1985] I.R. 532 (at 536), as "an irrevocable personal consent given by both spouses which establishes a unique and very special life-long relationship" may need to be reconsidered in the light of the fact that the Constitution now recognises that the parties to an original marriage may become divorced and remarry other persons so that they may, in many senses, belong to a number of families. While the constitutional statement that the family is based on marriage remains, the precise definition of "family" is a matter which may need to be looked at again in an appropriate case.

8.3 However, it may well be that the precise current meaning of "family" in a constitutional context is not decisive for the purposes of this case. As Finlay C.J. pointed out in this Court in L. v. L. [1992] 2 I.R. 77, Article 41 is concerned with protecting the family from external forces rather than in dealing with the individual rights of members of the family. It is true that the question of family does have a material relevance to the constitutional status of many individuals including those who may be born as a result of one of the many forms of surrogacy that are now possible. If the traditional view of the meaning of the term "family" is to prevail at a constitutional level and if the arguments of the State in this case are to prevail, then one of the effects would be, potentially, to deprive the twins of what might otherwise be their status within a constitutional family.

8.4 Apart from Article 41, Article 42 focuses on education and recognises what are described as "parents" as the natural and primary educators of children. In State (Nicolaou) v. An Bórd Uchtála [1966] I.R. 567, this Court held that the word "family" when used in Article 42, referred only to those families where the relationship was based on marriage. If that situation prevails then there is a significant difference in constitutional status between children whose parents are married and those who are not. In the latter case, Article 43 confers constitutional rights on the mother (see G. v. An Bórd Uchtála) but not on the father. To the extent that the rights of a father were referred in J.K. v. V.W., it was suggested in W.O'R. v. E.H. [1996] 2 I.R. 248 (at 288) that those rights "do not refer to any constitutional right or any natural right recognised in the Constitution". Given that there is no doubt that the genetic father is regarded as the father of the twins in law then it clearly follows that the determination as to who the twins mother is to be, as a matter of law, will determine whether the parents of the twins are married and thus, potentially, affect important constitutional rights.

8.5 Be that as it may, the principal constitutional entitlement, which seems to me to arise in the circumstances of this case, is the entitlement which persons have, as part of their natural entitlement to human dignity, to have the State recognise their status by reference to such relationships as they may have, whether to parents, siblings, wider family members and within such family or families (however defined) as their status may place them. The State is, in my view, entitled, within bounds, to properly regulate the recognition of such status. Laws providing for the possibility of adoption, but also specifying the circumstances in which legally recognised adoption is to take place, form a clear example of one such regulation.

8.6 But I see no reason in principle why the legislature cannot constitutionally act to regulate the increasingly complex situation, which exists by virtue of the rapid development of reproductive science. As already noted, in the course of argument it was emphasised, not least by counsel for the amici, that the sort of matters which require regulation include issues concerning how the conduct of surrogacy procedures themselves are to be regulated (referred to as ex ante measures) together with issues concerning the status of persons who are born as a result of such measures (referred to as ex post measures). The need for regulation of both those types can hardly be doubted. But there are very many policy choices indeed involved in respect of both ex ante and ex post regulation. It seems to me that, in this increasingly complex area, it is important to acknowledge that the Constitution confers a wide discretion (but not an unlimited one) on the State to legislate in the public good to ensure that proper protection is afforded to those, particularly the vulnerable, who might be exploited in the context of surrogacy arrangements, but also in bringing certainty to issues relating to the personal status of individuals born as a result of such arrangements.

8.7 But the problem with which this Court is now faced is that no such legislation has as yet been enacted. The question which needs to be addressed is as to whether the Constitution can be said to require that the existing legal status of persons in the position of the twins in this case, requires to be determined in any particular way. Put simply, in the absence of legislation specifically dealing with the matter, the current status of the twins must be considered by reference to the common law definition of "mother", to any relevant statutes which might impact on that position and to any requirements which the Constitution might mandate. I have already indicated that, in my view, the common law position was one which did not distinguish between a genetic mother and a birth mother. I have also indicated my view that neither the 1987 Act nor the 2004 Act altered that position. I cannot see that the Constitution requires that that position be altered either. The Constitution permits the State to regulate. It may well be that the State will choose to regulate in such a way as will cause, in some cases, a birth mother to be regarded as a mother, and, in other cases, a genetic mother to be regarded as a mother. Within constitutional bounds it is largely a question of policy for the Oireachtas to determine the precise parameters of any such regulation.

8.8 There is no doubt that the idea that two persons may, in different ways, be regarded as the mother of a child is counter-intuitive. But so also is not regarding the person who gives birth to a child as being its mother, and, equally in not so regarding the person who has given the female half of the genetic material which underlies such a child's makeup. Advances in reproductive science have led to a situation where, in the absence of legislation, whatever the law determines as the meaning of mother will, to an extent, be counter-intuitive in some cases. It may well be that the proper answer to the question as to who should be recognised as a mother in the often complex situations which can arise in this field is "it depends". However, that begs the next question. On what does it depend? That involves many policy choices which are primarily a matter for the Oireachtas and not, unless they break the limits of what is constitutionally permissible, the courts.

8.9 I have reached those conclusions on the lack of a constitutional effect on the issues which arise in this case only because I have concluded that the law, in the absence of legislative amendment, regards both a birth mother and a genetic mother as "mothers" or at least as having some of the legal characteristics of a mother. If I had come to a different conclusion on that point then there might well have been significant constitutional issues. To what extent would it be legitimate, for example, in current scientific conditions, for a definition of "mother" to potentially deprive a child or children of the status of forming part of a constitutionally protected family including their father? To what extent would it be constitutionally permissible, on the other hand, to deprive a birth mother of any potential recognition as a mother? These, and doubtless other, constitutional issues will need to be considered in the difficult and delicate balancing exercise in which the Oireachtas will have to engage before finalising any legislative intervention. They are also issues which, in my view, necessarily would loom large if either the genetic mother or the birth mother were, by definition, in all circumstances, and without any possibility of legal intervention, to be excluded by definition from being a mother for constitutional purposes. However, given the views which I have formed on the current definition of "mother" (in the absence of legislative intervention), those issues do not seem to me to arise on the facts of this case.

8.10 For those reasons I have come to the view that the Constitution does not mandate any different approach to the definition of "mother" than that defined by the common law amended, if it be amended, by constitutionally permissible legislation. It follows that, in my view, in the absence of definition, the term "mother", when used in Irish law in current scientific circumstances, applies equally to a birth mother and a genetic mother. In the light of that finding I will turn shortly to the consequences of that finding for the issues which arise in this case. However, I should deal first with the question of whether this case can be resolved on the basis solely of a construction of the 2004 Act.

9. Are the Issues simply ones of Statutory Construction?
9.1 On one view it might be said that the only issue which really arises in this case is as to the proper construction of the relevant provisions of the 2004 Act. The R family and the birth mother seek a declaration that the genetic mother is the mother of the twins and also a consequential order requiring the alteration of the registration of the birth of the twins to reflect that fact.

9.2 On that basis it might be said that the two issues are essentially the same for they both might be said to turn on the question of who should be registered as the mother under the 2004 Act. It seems to me that such analysis raises an important question concerning the true issues which arise in this case. As noted towards the beginning of this judgment it can, of course, be the case that, for a particular legal purpose, a word is given a specific definition which may not exactly conform with the commonly accepted meaning of the word concerned and which may not, therefore, affect the way in which that same word might be interpreted if used in a different context outside the scope of the measure in which the definition is to be found. The fact that, for the purposes of one specific piece of legislation, a particular term is defined in a particular way does not necessarily mean that that term, used anywhere else, has the precise meaning which its definition in the relevant legislation provides.

9.3 On that basis it might be said that, subject to ensuring that the relevant legislation is interpreted in a constitutionally permissible fashion, this case really only turns on what the term "mother", as used in the 2004 Act, means. Looked at that way the issues might appear to come down largely to ones of statutory interpretation with a potential constitutional element to that interpretative exercise. On that basis it might be said that the only real issue in this case is as to the meaning of the term "mother" as used in the 2004 Act informed, if necessary, by any constitutional requirements.

9.4 However, I am not persuaded that this case can be resolved on such a narrow basis. In order to decide this case on that basis, it would be necessary to accept one of two propositions. Either that the State has devised a system for the registration of births which allowed for the registration of a person as a mother who was not to be regarded as the mother of the child concerned for most other legal purposes or that the definition or interpretation of the term "mother" as used in the 2004 Act must significantly influence or even determine the meaning of that term for other (even potentially constitutional) purposes.

9.5 In other words, if this case is to be resolved solely on the basis of a consideration of the regime for the registration of births without regard to the legal definition of the word "mother" for wider purposes such as those canvassed in the course of these proceedings (the Constitution, succession, inheritance, status and the like) then it would follow that a person who is to be regarded as the "mother" of a child for, for example, inheritance purposes, either might not be the same person as one who was properly registered as the "mother" of the same child for the purposes of the registration of the child's birth or that the meaning of "mother" in the 2004 Act governs inheritance rules. Obviously such a situation can arise where, for example in the case of adoption, there is a further intervening and formal event, being the adoption of the child concerned. But in such a case there would be further formal measures (being the relevant adoption proceedings) which would recognise the change in status concerned. But in the absence of such formal change is there a proper legal basis for treating the term "mother" as being different for registration as opposed to other purposes?

9.6 In addition, and as I have already noted, there is the constitutional dimension. Given the many references to family and mother in the Constitution, can it be said that the State could properly exclude a person from being registered in the registry of births as the mother of a child (by reason of the definition of motherhood for the narrow purposes of registration) where that person nonetheless had the potential to be regarded as a mother for constitutional purposes depending on the circumstances of the case? Or, alternatively, is someone to be regarded or not regarded as a mother for constitutional purposes by reference to the meaning of mother in the 2004 Act? There was, of course, no constitutional challenge to the 2004 Act and for that reason it would, therefore, be wholly inappropriate to make any comment on the constitutional status of that legislation. I should also restate my view that, in the complex situation with which it is now faced, the Oireachtas must be afforded a wide margin of appreciation in attempting to regulate the very difficult issues which arise. However, it seems to me that a form of regulation which precluded any possibility in any circumstances of a genetic mother from being recognised as the mother of a child or which precluded giving at least some recognition to the status of the genetic mother in some appropriate way, would be of doubtful constitutional validity. It would, for example, as already noted, preclude persons, such as the twins in this case, from ever being part of a constitutional family with their father.

9.7 While not decisive, it is also worth noting that persons, understandably, place a high value on the way in which their status is officially recognised. We do not maintain, in this jurisdiction, any general register of persons which records matters such as their age, gender and indeed, parentage. The closest we have is the register of births, marriages and deaths. In those circumstances it is hardly surprising that persons are concerned that the way in which their birth is registered accurately reflects the legal situation, for it is, in normal circumstances, the only official record of their status. While it may, at least in some circumstances, be possible for the State to provide, in legislation relating to registration, for definitions which may not accord with everyone's view, it is nonetheless important that the register of births reflects, as best can be achieved, the general legal position. It would, in my view, certainly in the absence of some significant countervailing factor, be difficult to justify an important definition for the purposes of registration differing very substantially from the meaning of the same term in other legal contexts.

9.8 It might, of course, be that the Oireachtas actually took the view that, for registration purposes alone, the birth mother was to be regarded as the mother whatever might be the proper meaning of "mother" in other legal contexts. But the suggestion that "mother", as the term is used for registration purposes in the 2004 Act, means birth mother is one of inference rather than resulting from a clear legislative intent. For that reason, it seems to me that, certainly in the absence of a clear wording displaying a legislative intent which would require a different approach, the term "mother" as used in the 2004 Act should correspond, insofar as possible, to the meaning of the term "mother" as used in the general law. Thus, I would approach the issues in this case on the basis of first considering the meaning of the term "mother" in general law and only then considering whether there was anything in the 2004 Act which displaced that meaning for registration purposes. I would not favour an approach which looked at the issues which arise in this case the other way round.

9.9 For the reasons which I have sought to analyse, I am not satisfied that the term "mother", when used as a general and undefined term in the law, necessarily excludes either the birth mother or the genetic mother. In the absence of constitutionally permissible regulation which would, in the circumstances of a particular case or category of case, wholly exclude one or other of those persons, I am satisfied that both are entitled to be regarded as having some of the characteristics of a mother. Given that view of the general law I am not satisfied that there is anything in the 2004 Act which is sufficiently clear to mandate excluding a person who might otherwise be properly regarded as having some of the characteristics of a mother from being registered as such in some appropriate fashion. For those reasons I would not favour attempting to resolve this case on the narrow basis of a construction of the registration legislation even if approached with a constitutional eye. I, therefore, turn to the consequences of and conclusions to be drawn from the findings already addressed in this judgment.

10. The Consequences and Conclusions
10.1 For the reasons earlier set out I am, therefore, satisfied that both the genetic mother and the birth mother have some of the characteristics of "mothers" as that term is currently used in our law. The term "mother", historically, referred to both because both were, as a matter of then scientific fact, necessarily the same person. They are no longer now, however, necessarily the same person. But neither has, in my view, by reason of that scientific advancement, necessarily lost their status.

10.2 I fully appreciate that a legal regime where two persons can be regarded as having some of the characteristics of a mother of a child for legal purposes brings with it many complications concerning the very types of matters which were the subject of argument in this case. Issues of constitutional status; issues of citizenship and inheritance; and doubtless others. But those issues arise whatever the answer. Those same issues have the potential to create difficulties if either the position argued for by the R family or that advanced by the State is found to prevail. A child having two persons who have some of the characteristics of a mother may be highly counter-intuitive. But so is a child not being regarded as the offspring of the person who gives birth to them, but so equally is the person who has given such a child half of their genetic material not being regarded as the child's parent. Whatever the answer, in the absence of careful, detailed and sensitive legislation, the result will be counter-intuitive, messy, create a whole range of legal difficulties and, undoubtedly, be very unsatisfactory from the perspective of many persons.

10.3 But there just is no solution short of the sort of legislation which may now be contemplated. In the meantime, all a court can do is to declare the position as it currently stands and invite the legislature to take urgent action. For the reasons which I have sought to analyse I am satisfied that proper legal analysis confers aspects of the status of motherhood, on the law as it currently stands, on both the genetic mother and the birth mother. Insofar as it might be a material consideration, it seems to me that such an eventuality runs the least risk of unfairness. That is not to say that there may well be cases where the merits would overwhelmingly favour declaring either a birth mother or a genetic mother as being properly regarded as the mother to the exclusion of the other. But there is just no legal framework in which such a decision can properly be taken which differentiates between one case and another. In the absence of legislation the law must be the same in all cases. In those circumstances a law which does not exclude either has the potential to do less harm than a law which necessarily completely excludes one.

10.4 While it might well cause significant difficulties for the registration of children born as a result of the advances in reproductive science which are at the heart of this case, nonetheless it seems to me, at present, that a recognition that both a birth mother and a genetic mother are entitled to be registered in some way is the least bad solution. Pending any relevant legislation it seems to me to be a matter for an tArd Chláraitheoir to put in place such administrative measures as might be necessary to give effect to that type of registration.

10.5 While appreciating that this view does not command a majority, I would have proposed that the Court make a declaration to the effect that the genetic mother is the mother of the twins without prejudice to the status of the birth mother. I would also have proposed making an order directing an tArd Chláraitheoir to take whatever steps might be necessary to ensure that the registration of the birth of the twins reflects the status of the genetic mother thus declared. In the light of the recognition that this would cause administrative difficulties for an tArd Chláraitheoir I would, had this been a majority view, have proposed hearing counsel further on the precise form of order which should be made.











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