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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:
Murray 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 PURSUANT TO SECTION 60(8) OF THE CIVIL REGISTRATION ACT, 2004

AND IN THE MATTER OF THE CONSTITUTION OF IRELAND

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964

AND IN THE MATTER OF THE STATUS OF CHILDREN ACT, 1987

AND IN THE MATTER OF M.R. AND D.R. (CHILDREN)


      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 t-ARD CHLÁRAITHEOIR, IRELAND AND THE ATTORNEY GENERAL


RESPONDENTS/APPELALNTS


AND


L.L.


NOTICE PARTY


THE EQUALITY AUTHORITY AND THE IRISH HUMAN RIGHTS COMMISSION


AMICI CURIAE

Judgment of Mr. Justice John L. Murray dated the 7th day of November, 2014

1. The issue in this appeal concerns a question of statutory interpretation, namely, certain provisions of the Civil Registration Act, 2004. Central to that interpretative issue is the meaning of the word “mother” as used in the Act.

2. This is not a case which gives rise, or could give rise, to the Court assuming the role of law maker and laying down some golden principle, or a series of principles, regulating the legal status that might be accorded to a “biological mother” or a “birth mother” where children are born to the latter arising from a surrogacy arrangement with the former. For reasons explained later in this judgment, to do so would be to usurp the role of the Oireachtas as the institution authorised by the Constitution to make laws.

Background Facts
3. The proceedings have been brought by the third and fourth named applicants, a married couple, who have been unable to have children because the fourth named applicant was diagnosed with a medical condition in her late teens. This means that she does not have a uterus and is, therefore, unable to become pregnant. Accordingly, the couple were placed in the unhappy position of being unable to have a family. In this situation they decided to have recourse to a form of assisted reproduction known as surrogacy. In this particular case the couple entered into an agreement with the fourth named applicant’s sister (who is a notice party to the proceedings) whereby ova of the fourth named applicant fertilised by the sperm of her husband, the third named applicant, were implanted in the sister’s womb. In the parlance of surrogacy arrangements, and for the sake of clarity, it is necessary to refer to the fourth named applicant as the “commissioning mother” or the “biological” or “genetic” mother, and her sister as the “birth mother”. The commissioning couple and the birth mother entered into an agreement which sought to govern the rights of all parties with regard to the children to be born as a result of the surrogacy arrangement. The process of obtaining the fertilised ova of the biological mother and implanting them in the womb of her sister, the birth mother, took place with the assistance of a Fertility Clinic in Dublin. Following upon the implantation of fertilised ova and the gestation in the womb of the birth mother for the period of 9 months, the twins were duly born. On their birth in 2013 the commissioning parents took care and custody of the twins with the consent of the birth mother. By virtue of that consensual arrangement the couple have since cared for the children as their own children.

4. On the birth of the twins an attempt was made to have the biological mother registered as mother of the twins. The third named applicant was registered as the father because of the fact of fatherhood in this case and because fatherhood can be acknowledged. No issue turns on that.

5. In these circumstances the birth mother was registered as the mother of the twins, it being the view of the first named respondent, An t-Ard Chalaraitheoir, that in the relevant legislation the reference to mother meant the mother who had given birth to the children. This situation was obviously not acceptable to the father and to the birth mother, and subsequently an application was brought pursuant to s.35 of the Status of Children Act, 1987 for a declaration that the biological mother be named and registered as mother of the children to the exclusion of the birth mother. This was done with the agreement of the birth mother, the biological mother’s sister. This application was refused, again on the grounds that for the purposes of the relevant statutory provisions “mother” must be interpreted as referring to the birth mother. As a consequence, these proceedings were initiated seeking a declaration that the birth mother was entitled to be registered as the mother of the children, pursuant to s.35 of the Act of 1987.

6. It is an important element of the background facts in this case that the surrogacy arrangement was arrived in, what one might describe as, benign circumstances. There was at all times a complete consensus between the third and fourth applicants and the latter’s sister, the birth mother, concerning the surrogacy arrangements and the subsequent care and custody of the children following their birth. This close and consensual arrangement involving two sisters makes it, in the particular circumstances of the case, an attractive one from a human point of view, to resolve in favour of the parties concerned. However, the legal issues arising in this case cannot turn on such a view of this particular surrogacy arrangement. Neither can the resolution of the legal issues raised be dependent or affected by the existence of the consent of the birth mother in this case. As will be explained, the applicants seek to assert that, as a matter of statute law, the biological mother should, for the purposes of being registered, be treated as the mother of the children to the exclusion of the birth mother, and is not contingent on the consent of the latter. If the applicants are correct in the statutory position which they assert, it means that the biological mother in surrogacy arrangements will, as a matter of law, be treated as the mother in all circumstances, even where the birth mother objects.

Surrogacy
7. Since time immemorial, and perhaps more relevant, for most of the 20th century the only mother known to society was a mother who gave birth to the child. That is the position as of the birth of the child. It is a matter of fact. The law reflected that fundamental truth and the only mother known to the law has been the mother who gave birth to the child.

8. Post-birth circumstances can give rise to the existence of an adopted mother, foster mother, and so on, of which the most important is, of course, the adopted mother who becomes the mother of the child in a real sense. These, of course, arise post-birth, and more important with the consent of the mother who gave birth (save in very exceptional circumstances where it is proved, to put it broadly, that the mother is incapable in any proper way of giving parental care to the child).

9. Modern science has, as we know, radically altered the manner and circumstances in which an ovum may be fertilised outside the womb and implanted in another womb, and whose womb that will be. There are a range of forms of assisted reproduction of which surrogacy is generally recognised as being the most controversial. It means that biological elements of a child are, in such a case, attributable to a person other than the mother who has given birth.

10. Generally, there are said to be two kinds of surrogate mothers:

      (a) Traditional surrogates: Artificial insemination first made surrogacy possible. A traditional surrogate is a woman who is artificially inseminated with the father’s sperm. She then carries the baby and delivers it for the parents to raise. A traditional surrogate is the baby’s biological mother. That is because it was her egg that was fertilised by the father’s sperm. Donor sperm can also be used for a traditional surrogacy. (Even with this form of surrogacy there are, of course, variations as to whom it is intended by those involved should raise the child as a parent or parents).

      (b) Gestational surrogates: In vitro fertilisation (IVF) now makes it possible to harvest eggs from the biological mother, fertilise them with the sperm of the father and place the embryo in the uterus of a gestational mother. That mother then carries the baby until birth. Such mother has no genetic ties to the child. She does have ties that are intrinsic to a pregnant mother who has nurtured the child in the womb from implantation of the fertilised egg to birth.

11. It is internationally recognised that whether, and, if so, in what circumstances, surrogacy should be permitted in law gives rise to issues of a fundamental nature in an ordered society, and requires the law maker to make social, ethical and moral judgments. In some countries any form of surrogacy is prohibited by law, in others it is strictly regulated, invariably for policy reasons based on those social, ethical and moral considerations. In some countries the reasons for prohibiting surrogacy would appear to include protecting the dignity of the mother who gives birth, as well as the dignity and rights of the children which it is felt could be compromised by putting them in the position of having two mothers, that is to say, the mother who gave birth to them and the biological mother. In any event, it seems evident from the limited material at the disposal of the Court, that all laws prohibiting or regulating surrogacy have been formulated after sedulous consideration of these social, bio-ethical and moral issues. What these ethical and moral considerations or issues are, or might be, have not been raised or examined in any meaningful way in these proceedings, whether in the High Court or in the Supreme Court.

12. In essence, the applicants make the case that irrespective of any such complex considerations the relevant statutory provisions must be interpreted as recognising the biological mother, and only the biological mother, as the mother of the children. In short, it is as if the legislature, when allegedly enacting legislation with that intended effect, must be assumed to have made all the value judgments necessary on these complex matters.

13. It might well be seen as humanely desirable to fashion a legal answer to the problems of the applicants in this case, which would allow the biological mother to be treated, as a matter of law, as the mother of the children. However attractive as that solution might seem in this particular case, a court has to look at the law objectively since that law governs the status of birth mothers, vis a vis their children and biological mothers generally, and not simply the circumstances of this particular case.

14. The core scientific evidence concerning the genetic role of the commissioning parents in a case such as this is not in dispute. That evidence included the fact that the uniqueness of a human being is complete at fertilisation when the sperm and ovum have come together. The sperm from the genetic father and the ovum from the genetic mother provide the “full compilation of genetics that then ultimately give rise to who we are” (Judgment of the High Court, paragraph 6). The DNA ultimately controls everything. The High Court also noted that “while the gestational mother may affect the foetus in a molecular way, she does not alter the DNA”. In short, all the biological or DNA traits of a child born in this way stem from the genetic and commissioning parents. On the other hand, the pregnant mother can have an epigenetic influence on the evolution of the child in the womb. Epigenetics is described as a process of gene expression, whereby some genes are turned on and some genes are turned off. What happens in the womb can activate or deactivate certain genetic traits in the baby, although the DNA sequence is not altered as such. The pregnant mother can also influence the child or the foetus in a process described as microchimerism. This involves the migration of the mother’s cells into the child, and this is relevant to risk factors for auto-immune diseases. Core DNA, however, is not affected. At least some of the epigenetic effects can be altered or reversed in post-birth upbringing.

15. In short, the essence of the applicants’ case is that the father and the genetic mother of a child born after a surrogacy arrangement, as in this case, enjoy a unique and exclusive biological link with such a child, by reason of which they are entitled, as a right, to be registered as the parents of the child to the exclusion of the mother who gave birth to the child. The relevant statutory provisions, and the word “mother” as used in them, must be interpreted in that sense.

16. Before turning to the issue of statutory interpretation it is necessary to look, at least generally, in the broader context, including the variety of circumstances, in which surrogacy arrangements can give rise to a genetic link between a woman who is not the birth mother of a child.

17. A woman who is not able to produce her own ova may have implanted in her womb ovum from another woman and this ovum may be fertilised by sperm from the donee’s husband, or an anonymous donor. The intention of such an arrangement is that the woman who has received the ovum can give birth to a child, perhaps fathered by her husband, and raise that child as her own, even though there is a genetic link between the child and the birth mother. If our current legislation, as claimed by the applicants, is to be interpreted as recognising the primacy of a genetic link between the mother providing the ovum and the child, how are various, apparently competing, rights to be regulated in such a case?

18. The genetic or biological link between a commissioning mother and the child is of undoubted importance. However, a purely genetic approach ignores the intrinsic connection that must be taken to exist between the birth mother and the child to which she gives birth after nurturing it in her womb from its earliest formation. The mother will have lived with the growing foetus and child in her womb, probably organised her lifestyle, her eating habits, her drinking habits, as well as taking any other necessary measures to ensure that a healthy foetus develops into a healthy child. She will have experienced, physically and emotionally, the various stages of evolution of the foetus in the womb, and felt its movements “or kicking” at a later stage. As Dr. Maloney and Professor Greene, both geneticists, agreed in their evidence in the High Court, the birth mother is not “simply a vehicle for carrying” the foetus. There has been no serious examination in the judgment of the High Court of how the birth mother empathises and identifies with the child on its birth. Certainly, it may well be that in most cases of surrogacy arrangements that the birth mother is content and happy to follow through at the point of birth with the arrangement and give care and custody completely and finally to the commissioning mother or parents. On the other hand, there is no indication that any country permits and regulates surrogacy arrangements, allows it to proceed to fruition without the birth mother giving her consent, not only at the time of entering into a surrogacy agreement, but after birth. Such countries appear to insist upon ensuring the free and informed consent of the birth mother after birth, and some that she be counselled on the hardship of giving away a child after bearing it.

19. If consent of the birth mother is only required at the commencement of the pregnancy, the question arises whether a law treating the genetic mother as having exclusive or overriding rights to the child on birth, means that the child must be forcibly removed from the arms of the unwilling birth mother at birth. There does not seem to be any country in which the law in surrogacy requires that to be done. In recent months a case reported in the British media concerned a mother who had given birth to twins under a surrogacy arrangement and who decided that she wished to keep the babies. She was reported as saying “I nourished them to birth and went through a life-threatening emergency caesarean to have them. I would be devastated if they are taken away from me now. … It is my body which grew these babies, I feel like their mother”. The law in the U.K. recognises the birth mother as the lawful mother and entitled to be registered as such, unless she otherwise consents. I mention the foregoing not as evidence of any fact but purely to illustrate in an anecdotal way that the scenario to which I have referred is not purely hypothetical, but one of a range of complex questions concerning the status of mothers and children to which the whole process of surrogacy may give rise.

20. Other reported situations giving rise to such complexity include circumstances where, due to an error in the fertility clinic involved, the wrong fertilised egg was mistakenly placed in the receiving woman’s womb. An uncommon and rare occurrence, but one which is envisageable and which reportedly has occurred. Here the birth mother gives birth to a child, or children, of genetic parents of whom she has no knowledge or had no previous contact and with whom she may have no empathy, and may have reasons why she would not wish a child which she has borne in her womb be placed in their custody. Is, or should, the purely biological or genetic connections, without more, be determinative of the rights and obligations and the interests of the children so born?

21. Other potentially complicating circumstances are referred to by my colleague MacMenamin J. in his judgment. These are first of all a case in which the commissioning parents refused to accept one of the twins born to a surrogate or birth mother because the child had Down’s syndrome. The birth mother was left with the Down’s syndrome child and the other twin separated and brought back from Thailand to Australia. Another surrogacy arrangement was complicated by the fact that the birth mother no longer wished to surrender the children born as a result of the arrangement because the commissioning father had been charged with sexual abuse.

22. The complexity of surrogacy, of course, not only affects the rights and interests of mothers, biological or birth, but also the welfare and interests of the children born as a result of such arrangements.

23. Other issues that arise and would have to be addressed by any regulatory or legislative regime include not only the initial premise as to whether surrogacy should be permitted, but the circumstances in which it would be permitted including whether there would be a prohibition on mercenary surrogacy, that is to say, where a person is paid a substantial reward for agreeing to bear children for the commissioning parents. Many, and most western countries, at any rate, prohibit this kind of surrogacy and permit it only for altruistic surrogacy where there is no payment of a fee, other than reasonable expenses associated with the pregnancy. The possibility of persons in need, and not just in poor countries, being exploited by the offer of substantial financial reward is obvious, and is an issue which is normally addressed by detailed regulatory legislation.

24. Other than from an essentially scientific or biological perspective, none of the profound social, ethical or moral issues to which surrogacy can give rise were examined or investigated to any depth in the proceedings before the High Court. Nor were they aired in this Court. The overview above of some of the circumstances in which surrogacy arrangements may occur or take place is necessarily incomplete. The courts have no expertise, as such, in these matters. A court can, however, when interpreting a statute envisage at least the range of implications which a particular proposed interpretation of the provision of a statute, may have on the rights and status of parties who might be affected.

25. Surrogacy arrangements necessarily affect the status, welfare and rights of children. They have implications for the status and rights of the mother who gives birth to the child, both before and after birth. They have implications for the rights and status of the biological mother, or the commissioning parents, who bona fide enter into surrogacy arrangements in order to have a family.

26. How the welfare and status of such persons may be catered for necessarily involves value judgements as to how the law should be fashioned to deal with the welfare, rights and status of such persons in a variety of circumstances. That is quintessentially a task undertaken by legislators who form judgments on the basis of what they perceive as best policy. All laws reflect policy choices of the legislature, even when there is an overriding consideration that they comply with the Constitution.

Absence of Legislation
27. As has been emphasised throughout this case there is no legislation in this country purporting to authorise or regulate surrogacy as a form of assisted reproduction. This lacuna is obvious and regrettable, and I refrain from making any further comment on it.

28. Although there is no law either authorising or regulating surrogacy in any form, it is not unlawful, as such. No question arises in this case as to the enforceability in law of a surrogacy agreement. The fact is that children living in the State have been born in this country and abroad following surrogacy arrangements, and those children are in the care and custody of the commissioning parents and being raised by them. In view of the conclusions I have arrived on the statutory interpretation issue, the status of those children will have to be addressed in legislation whatever laws in whatever form are introduced governing future surrogacy arrangements in the State.

29. Future legislation will have to decide, as other countries have had to decide, whether surrogacy arrangements should be permitted. If so, the law will have to determine whether surrogacy arrangements entered into abroad will be recognised or, as some countries do, only recognise those that occur within the State. It will have to determine whether only altruistic arrangements are lawful. It may have to decide whether, as in the case of adoption, any prior approval of commissioning parents might be required. Most importantly, it will have to make provisions for the criteria according to which the status of all those affected by birth through surrogacy is to be determined, not only from the making of a lawful surrogacy agreement, but also as and from the time of birth.

30. This is the context in which the important issue of statutory interpretation has been raised by the applicants in this case.

Submissions of the Parties
31. The submissions of the various parties, including those of the amici curiae, have been summarised in the judgment of the Chief Justice, and I do not propose to repeat them here.

Statutory Interpretation
32. The core interpretative issue in this case, as the third and fourth applicants themselves have emphasised, is whether the reference to ‘mother’ in the Civil Registration Act, 2004 is to be interpreted as referring to the genetic mother to the exclusion of the birth mother, and, therefore, that the former is entitled to be registered as the mother of the child or children in question, and not the birth mother. It is common case that the relevant statutory provisions do not make the recognition or registration of the person to be treated as the “mother” of a child contingent on the consent of any other person, of any status. Therefore, it cannot be said that the de facto consent of the birth mother in this case, the Notice Party, can have any bearing on the outcome as to the interpretation of the term “mother” in the Civil Registration Act, 2004.

33. Moreover, no issue arises as to the constitutionality of any of the statutory provisions, it not being contended, that if the true construction means that the term “mother” refers only to the birth mother, that such would be incompatible with the Constitution. The Court is left therefore with the pure question of statutory interpretation, even if, as has been argued, it has to be viewed in a constitutional context.

The Civil Registration Act, 2004
34. Pursuant to s.19(1) of the Civil Registration Act, 2004 “the required particulars of the birth” shall be given to a Registrar employed by a local registration authority within three months of that birth. “The required particulars of the birth” are those set out in Part 1 of the First Schedule of the Act (see s.2 of the Act of 2004).

35. The “particulars of the birth” to be entered in the Register of Birth, as set out in Part 1 of the First Schedule, include the name and address of the mother. The mother, in the sense used by the Act, and whose name is given in the particulars, is then registered as the mother of the child in question.

36. In this case, in the circumstances outlined earlier in this judgment, the birth mother, the Notice Party, was registered as the mother under the terms of the Act, along with the father, the third named applicant. An t-Ard Chláraitheoir has powers to correct errors in the Register of Births, as provided in sections 63 and 64 of the Act of 2004.

37. As submitted by the third and fourth named applicants, one of the means by which it may be established that particulars entered on the Register of Births is incorrect is by the grant of a declaration of parentage, pursuant to s.35 of the Status of Children Act, 1987, as amended.

38. Section 35(1) of the Act of 1987 provides as follows:

      “(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.”

Sub-section 8 of s.35 provides that:
      “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.”

In this case, the t-Ard Chláraitheoir has indicated that should the Court make a declaration that the fourth named applicant is the mother, he will amend the particulars of birth entered in the Register of Births as required by s.19 of the Civil Registration Act, 2004.

39. Such an application has, of course, been made pursuant to that section by the children concerned who brought the proceedings through their father and next friend. What has been established as a fact is that the fourth named applicant is the “genetic mother” of the children, and that the Notice Party is their “birth mother”.

40. When interpreting a statutory provision it is the task of the courts to give effect to the intention of the Oireachtas as expressed in the words of the statute. Although it is not always a straightforward task, any departure from that essential principle would lead the courts to trespassing on the constitutional legislative role attributed exclusively to the Oireachtas by the Constitution. In Crilly v. T. J. Farrington Limited [2001] 3 I.R. 251, I had occasion to state:

      “The phrase "intent of the legislature" is, on a casual view, ambiguous because it does not expressly convey whether it is the subjective intent or the objective intent of the legislature which is to be ascertained. Manifestly, however, what the courts in this country have always sought to ascertain is the objective intent or will of the legislature. This is evident for example from the rule of construction according to which when the meaning of the statute is clear and definite and open to one interpretation only in the context of the statute as a whole, that is the meaning to be attributed to it.”
41. I would also refer to the statement of Lord Nicholls in R v. Secretary of State for the Environment [2001] 2 WLR 15, as I did in Crilly, where he explores the meaning of the phrase “intention of parliament”:
      "Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus when the courts say that such and such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said … 'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used'.”
42. Accordingly, the intent of the Oireachtas is to be imputed to it on the basis of the text of the Act adopted, in this case the Act of 2004.

43. The Civil Registration Act, 2004 refers to “mother” simpliciter, and it is she who must be registered as such. The Act envisages the existence of only one person who is the mother. The question which the applicants seek to pose is whether it refers only to the woman who gives birth to the baby, or, in a case of the implantation of a fertilised ovum in the womb of the birth mother, does it refer to the woman from whom the ovum was taken, the genetic mother? Thus, it is self-evident that the Act does not refer to two possible mothers in respect of the same birth. Moreover, whichever “mother” it is, she is entitled to be registered under the Act as a right, without the consent of the other.

44. It cannot be doubted that under the provisions of the Births & Deaths Registration Act (Ireland), 1880, until its repeal and replacement by the Act of 2004, the reference to the registration of a mother as part of the particulars of birth referred to the birth mother.

45. A degree of reliance was placed by the respondents on the maxim “mater semper certa est …” as being a governing principle of the common law reflecting a shared fundamental truth expressed in the oft quoted passage of Lord Simon in Ampthill Peerage [1977] A.C. 547 at 577:

      "Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition.

      Fatherhood, by contrast, is a presumption.”

46. It was debated in the course of argument whether this maxim, originating in Roman law, could be treated as being a substantive principle of the common law. I feel this issue distracts from rather than clarifies the central question of interpretation in this case. A maxim has been defined as “a short pithy statement expressing a general truth”. It is in a sense a sobriquet for such a recognised or universally accepted truth, and has been used judicially as such. It is a sobriquet for the accepted fact and the legal relationship expressed by Lord Simon. This is what society and the law has accepted, namely, that the mother who gives birth to a child is, in fact, the mother of the child. Statute law recognised that fact.

47. This is borne out by the statement of Walsh J. in O’B v. S [1984] I.R. 316, when he stated:

      “… [t]he 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.” (at page 338) (emphasis added)
48. So however one may perceive the origins of the maxim mater semper certa est, and its position as part of the general principles of common law, the underlying legal reality is that statutory law in Ireland, as Walsh J. has pointed out, recognises the fundamental truth reflected in that maxim by virtue of the statutory provisions in the Act of 1880 itself. It was part of our law by virtue of the statutory provisions to which Walsh J. referred. None of this, of course, is surprising, because statute law was simply recognising, what society recognised, that the only person who could or should be treated at birth as the mother is the mother who gave birth to the child.

49. The Act of 2004 repealed and replaced the Act of 1880. Its purpose and role in relation to the registration of births is precisely the same.

50. Section 19 of that Act demands that “the required particulars of the birth” be given to a Registrar. It focuses primarily on the fact of birth. In the First Schedule, following a reference to date, place and time of birth, it then specifies that details of the name of the mother be given for the purposes of registration. It seems to me self-evident that what qualifies a “mother” for registration is that she is the mother who gave birth. No criteria or reference point for registration such as from whom the fertilised ovum came, or the like, is mentioned expressly or implicitly.

51. The fact remains that the birth mother nurtures the foetus and child from the earliest beginnings of life to its birth in this world. As I observed in Roche v. Roche & OthersOf course the gestation and birth of a child is inextricably and humanly linked to the mother and its development in the womb.” While that statement was undoubtedly made in the context of a case where no surrogacy was involved, nonetheless the inextricable human empathy and nexus must, and does, exist between a woman and a child who has been brought to life and birth through her womb can hardly be denied as if she was a vessel of convenience. Because, for personal reasons and particular circumstances, including surrogacy, she willingly consents, after birth, to the welfare and custody of the child being transferred to a genetic mother, just as a mother may consent to have her child placed for adoption, cannot take away from that underlying reality.

52. Moreover, if the biological or genetic mother was to be deemed the only mother for the purpose of registration, it would exclude from registration a birth mother, who had availed of assisted reproduction with the aid of another woman’s ovum in order to have a child of her own. I cannot conclude that the 2004 Act was intended by the Oireachtas to regulate status and rights in such complex situations in the manner claimed by the applicants.

53. I am quite satisfied that if the Oireachtas intended, when enacting the Act of 2004, to regulate these matters and to radically alter the basis on which a person qualified for registration as the mother of a child, to the compulsory exclusion of the birth mother, it would have made overt and express provision for doing so. The myriad of circumstances which can arise when one moves away from the anchor point of the birth mother being treated as the mother of a child have been referred to in general terms at the outset of this judgment. As I have also previously mentioned, that if the applicants assertions as to the interpretation of the Act of 2004 are correct, then the genetic mother would be entitled to be registered as the mother of a child without the consent, indeed in the teeth of an objection, from the birth mother.

54. In my view, the term mother in the Act of 2004 bears the meaning which it did in the preceding legislation, which it repealed and replaced. There is nothing in the terms of the Act of 2004 suggesting that the term mother should be not understood to mean what it has heretofore meant in law and fact.

55. Undoubtedly, the fact that scientific developments has made it possible for the genetic mother and the birth mother to be different persons may lead to changes in the law. But that is a matter for the Oireachtas. It is true that the applicants have argued that certain provisions of the Status of Children Act, 1987 alter the statutory criteria by which the mother of a child was to be ascertained and determined for the purposes of the Act of 2004. Section 38 of the 1987 Act provides that in any civil proceedings in which the parentage of any person is in question, the court may give a direction for the use of blood tests “for the purpose of assisting the court to determine whether any person … is or is not a parent of the person whose parentage is in question …”. It was pointed out on behalf of the applicants that the term “blood test” is defined in the Act as meaning any test “made with the object of ascertaining inheritable characteristics”. By virtue of these provisions an argument was made that the effect of the Act of 1987 meant that parenthood, including motherhood, should be determined exclusively by reference to “inheritable characteristics”. In a surrogacy birth the birth mother did not pass on any inheritable characteristics to the child born, but the genetic mother did.

56. I do not consider that these provisions of the Act of 1987 have any bearing on the interpretation to be given to the Act of 2004. In fact, I think it is self-evident from any reasoned reading of the different Acts. There may be a variety of circumstances in which, particularly long after birth has taken place, issues or disputes may arise as to the parenthood of a particular individual. Such issues could arise in proceedings concerning succession rights to a deceased’s estate, or in a paternity suit. Nonetheless, there is nothing in the Act of 1987 to suggest that the notion of father or mother was to be considered anything other than that as traditionally understood. Blood tests self-evidently could be helpful evidence as to parenthood. Test results could be inconclusive, or could exclude a particular person from being a parent, father or mother. Certainly, DNA tests nowadays could give a definitive answer to genetic links. Nonetheless, as the relevant section makes clear, blood tests were there to assist the court in trying any civil issue as to who is a parent, mother or father. There is nothing in the Act to suggest that the legal notion of mother is a reference to anyone other than the birth mother. The tests which may be directed by the court for the purposes of the 1987 Act are intended to assist the court in determining whether that is in fact the case in proceedings concerning a particular person. There is nothing in the provisions of the Act of 1987 which, in my view, could be said to alter the ordinary and natural meaning of mother, as contained in the provisions of the Civil Registration Act, 2004 (nor in its predecessor, the Act of 1880).

57. The reliance of the applicants on the provisions of the Constitution was of a limited nature. They argued that the term “mother” was not defined in the Constitution, and that the Constitution should, therefore, not be interpreted as prohibiting or restricting an interpretation of the meaning of mother in the Act of 2004 such as the one for which they had argued. In short, it was argued that the Constitution did not mandate that the term “mother” as contained in the Act of 2004 be interpreted as referring only to the birth mother. Of course, the applicants did not argue that the Constitution mandated the interpretation for which they have argued in circumstances where there is a surrogate birth. If they had done so, then they would have had to argue that the provisions of the Act were unconstitutional, if they did not permit the interpretation for which the applicants argued. This was not part of the applicants’ case. In short, the applicants argued that the notion of mother, so far as it exists in the Constitution, neither mandated nor prohibited an interpretation of the Act of 2004 as entitling a genetic mother to be registered as the mother in the case of a surrogate birth.

58. Since I am of the view that by virtue of the ordinary and natural meaning to be attributed to the provisions of the Act of 2004 is such that the term “mother” in the Act refers, as the Oireachtas intended, to the birth mother. It is not, therefore, necessary to examine, in the context of the issues in this case, the meaning of mother as it occurs in the Constitution.

59. The issue of statutory interpretation is the only issue which arises for decision in this case.

60. As to the argument advanced by the Amici Curiae, based on the constitutional guarantee of equal treatment, in particular by reference to the judgment of O’Hanlon J. in S. v. S. [1983] I.R. 68. I agree with the conclusions of O’Donnell J. in this regard.

Conclusion

60. For the reasons outlined in the judgment, I conclude that the reference to mother in the provisions of the Civil Registration Act, 2004 can only be interpreted, as intended by the Oireachtas, to refer to the mother who gave birth to the child. It is she who must be registered as the mother. Registration of the name of a mother as “particulars of the birth” is compulsory. There is nothing in the language of the Act from which it would be considered that the Oireachtas intended that the “genetic mother” or “biological mother” be registered to the automatic exclusion of the birth mother.

61. As I have explained earlier in my judgment, any law prohibiting or governing the myriad of circumstances which can arise where births occur through surrogacy must, as is internationally recognised, address fundamental issues of a social, ethical and moral nature. This necessarily involves the making of value judgements and the formulation of best policy as to the status and rights of genetic mothers, birth mothers, as well as the welfare and dignity of the children involved.

62. How these complex issues concerning such rights, status and welfare can be addressed, taking account of competing, or even conflicting, values, is quintessentially a matter for a legislature. The courts do not, in my view, have at their disposal objective criteria to lay down some golden rule or series or principles which would govern such matters. As I stated in Roche v. Roche & Others (15th December, 2009):

      “The courts do not, in my view, have at their disposal objective criteria to decide this as a justiciable issue. Issues are not justiciable before the courts where there is, as Brennan J., put it in his opinion in Baker v. Carr 369 U.S. 186 (1962), “ a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; …”
63. In this case, there is a manifest lacuna in the law. Surrogacy is neither authorised by law nor prohibited by law. It is for the Oireachtas to make the value judgement based on best policy, as other countries have had to do, as to whether, and if so, in what circumstances, assisted reproduction by means of surrogacy should be permitted.

64. For the reasons set out above, I would allow the appeal and set aside the order of the High Court.











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