A landmark decision was reached in Ireland that is sure to have a rippling effect for others. Sometime in January, a case was brought before the court concerning the rights of genetic mother’s whose children were born via surrogacy. In this case, the genetic mother of a child born via surrogacy, went to court to be listed as the child’s mother on the birth certificate. According to reports, she is the genetic mother of twins who were carried by a surrogate. The surrogate, who was in fact her sister, carried the twins following In-Vitro Fertilization treatments with embryo’s using the woman’s eggs and her husband’s sperm. The twins have lived with their genetic parents since birth.
In 2010, the genetic parents took the steps to have their children’s birth certificates corrected. Their goal was to have the genetic mother legally recognized as such on their children’s birth certificate. However, they were met with resistance. The genetic mother petitioned the chief registrar of births, deaths, and marriages to have her sister’s name taken off the birth certificate and replaced with her own so that she could be legally recognized as the children’s mother. However, the registrar – Kieran Feely—denied this request. He had been told by his predecessor how to deal with surrogacy issues and that the outcome was always that the person who is listed as the birth mother on the birth certificate is the one who officially gave birth to the child. He persisted with this decision despite being presented with DNA evidence and a letter from a clinic, confirming the children’s genetic mother was not the same person who had given birth to them.
Feely felt as though he had no legal basis to change the information on the birth certificates basing it on the principle of “Mater certa simper est” which essentially means that motherhood is certain. He argued that bringing genetics into play would simply cause confusion and possibly create a financial burden. When confronted with the rationale that perhaps maternity (in the cases of surrogacy) should be treated much the same as paternity – something that has to be proven. His response was that maternity is a fact, whereas paternity is a presumption. The mother, however, persisted in her pursuit by taking the case to the High Court in Dublin.
The Government held that the Irish Constitution outlines a definition of the birth mother and that this definition cannot be altered, citing the same principle the motherhood is always certain. Justice Henry Abbott, the overseer of the case, disagreed and cited that the definition only applies to the child while it was still in the womb. His ruling was that the genetic mother was entitled to be listed as the birth mother on the twins’ birth certificates
The genetic mother is reportedly very happy with the outcome of this landmark case. This case now gives hope to at least 200 other mothers in Ireland who utilized a surrogate to bring their genetic children into the world. It is hoped by many that this case will shed some much needed light on this issue and force legislative action to be taken on a grander scale to secure the rights of genetic mothers.
However, this may not be the last that we hear of this case as the Government has 21 days to appeal this decision and it is believed that most likely will do so.