Genetic Irish mother loses birth certificate right

Supreme Court in Dublin
Image caption Seven judges made the ruling at the Supreme Court on Friday

The genetic mother of twins born to a surrogate has lost her legal battle to be declared the children's legal mother on their birth certificate.

The Supreme Court in Dublin overturned a High Court decision declaring the genetic mother as the legal mother.

The state had appealed last year's landmark decision of the High Court declaring the genetic mother as the legal mother.

The case involves a woman whose sister carried her embryos.

The woman who provided the embryo won the right to be named as their mother on their birth certificates.

The High Court had ruled that genetics can be used to determine maternity just as it can paternity.

But the state appealed that decision to the Supreme Court where a seven-judge panel delivered a ruling on Friday.

Chief Justice Susan Denham told the Supreme Court the case dealt with complex, social issues but that there was a gap in the law on the issue.

Judge Denham said Irish law, as it stands, does not address the issue of surrogacy but there is nothing in the Irish Constitution to prevent reform.

She told the court that legislating for the issue was a matter for parliament.

"The decision of the majority of the court is to allow the appeal," the judge said.


Seven separate judgments were outlined in the court.

The case was fought between the family and the state registrar.

In this case, both women consented to having the genetic mother recognised on the children's birth certificate.

In the appeal to the Supreme Court, lawyers for the state said the birth mother was the mother as a matter of public law and could not be changed by private contract.

It was a matter for the Oireachtas (national parliament) to change the law.

If the High Court judgment was allowed to stand motherhood would be ascribed to the donor of an egg and the consequences of this were massive.

But the family's lawyers argued there was no distinction between mothers and fathers in the Status of Children Act, under which a declaration of parentage could be sought.

They said the test for establishing parentage under this act was a DNA test, not a test of who gave birth.

They said the children had a constitutional right to have their blood links to both parents recognised as it affected a range of other rights, including guardianship, inheritance and property rights.

They said the decision of the High Court would not pose a problem for those who use donor eggs as this was mostly done anonymously.

A lawyer for the genetic parents said the family was very disappointed with the decision.

"They (judges) have bounced it back to the government. Legislation needs to be introduced. These aren't the only families involved in this particular type of case," she said.

Legislation to deal with the issue of surrogacy in Ireland had been planned but shelved as the case went through the courts.

"I expect them to get on board and get their act together," she said. "It might be a long time coming.

"These children are getting older. They need their legal position corrected."

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