Supreme Court allows appeal on surrogacy mother registration, ruling issue requires legislative action.

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 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.), O.R. AND C.R.

APPLICANTS/RESPONDENTS

and

AN tARD-CHLÁRAITHEOIR, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

and

L.L. (NEE M.)

NOTICE PARTY

th

Judgment delivered on the 7 day of November, 2014 by Denham C.J.

1. This appeal arises to be decided at a time when there have been radical scientific developments in assisted human

reproduction which have not been addressed in legislation. The Court was informed that, a few days before the hearing of

the appeal commenced, the Department of Justice published the Draft Heads of a General Scheme of a Children and Family

Relationships Bill, 2014, of which Part 5 purported to make provision for surrogacy arrangements. However, this is not an

Article 26 Reference, there is no challenge to the constitutionality of any Act of the Oireachtas, and the appeal must be

decided on the law as it stands.

2. At the core of the case is the application by the applicants/respondents that the fourth named applicant/respondent be

registered as the mother of the first and second appliants/respondents. This case arises out of a surrogacy arrangement

whereby the fourth named applicant/respondent is the genetic mother of the children, and the notice party is the gestational

mother. The State appellants submitted that the gestational mother is the mother for the purpose of the Civil Registration Act

2004, while the applicants/respondents submitted that the genetic mother should be so registered.

Appeal

3. This is an appeal by An tArd-Chláraitheoir, Ireland, and the Attorney General, the respondents/appellants, referred to as

“the appellants”, from the judgment of the High Court (Abbott J.) delivered on the 5th March, 2013, and from the orders of

the High Court made on the 16th May, 2013, and perfected on the 23rd May, 2013.

Background facts

4. I adopt the background facts as set out by the learned High Court judge.

5. In this appeal the term “genetic father” refers to the man who provides the sperm which is used in the fertilisation

process. In this case the third named applicant/respondent, referred to as the “third named respondent”, is the genetic father

of the first and second named applicants/respondents, who are referred to as “the twins”.

6. The term “genetic mother” refers to the woman who provides the ovum which is used in the fertilisation process. In this

case the fourth named applicant/respondent referred to as the “fourth named respondent”, is the genetic mother.

7. The term “gestational mother” refers to the woman in whose womb the zygote is implanted, who carries and

subsequently gives birth to a child. In this case the notice party is the gestational mother.

8. The fourth named respondent was unable to become pregnant and to give birth and so by arrangement with the notice

party, her sister, ova provided by the fourth named respondent were fertilised by sperm provided by the third named

respondent. That fertilisation took place in vitro. The zygotes which were produced as a result of that fertilisation were

implanted in the womb of the notice party, who subsequently gave birth to the twins.

9. The third and fourth named respondents and the notice party agreed prior to the birth of the twins that they would be

brought up and would be reared as children of the third and fourth named respondents, and that is what has occurred.

10. There is no dispute between the genetic parents and the gestational mother as to how they wish the twins to be treated in

fact and in law. However, the State authorities take the view that, as a matter of law, the person who must be registered as

the mother of the twins is the gestational mother.

11. After the birth of the twins, the notice party and the third named respondent attended the Registrar’s Office and were

registered as the parents. Following registration, a letter accompanied by DNA evidence was sent to the Superintendent

Registrar for Dublin seeking the correction of an error under s.63 of the Civil Registration Act, 2004. This request to have

the fourth named respondent recorded as the mother of the twins was refused.

12. There is no dispute as to the fact that the third and fourth named respondents are respectively the genetic father and the

genetic mother of the twins. Nor is it disputed that the notice party is the gestational mother of the twins.

13. All named applicants/respondents are referred to collectively as “the respondents”.

High Court Judgment

14. In a very broad ranging judgment the learned High Court judge considered matters of fact, the common law, statutory

law and the Constitution. He reached the following conclusions on the law:-

“100. The maxim mater semper certa est is part of a series of maxims relating to maternity and paternity arising

from the ancient Roman law. It can be said that the maxim achieved such prominence, acceptance and fixity by

reason of the fact that before IVF the mother of the baby was determined at parturition or birth and the maxim

(being an incontrovertible truth) expressed the facts of the situation. In the parlance of the common law the

maxim became a presumption at law and in fact. Because it was based on incontrovertible facts, it became an

irrebuttable presumption in any court proceedings. That meant that motherhood would be presumed in respect of

a baby as between a woman and that baby once parturition of that baby was proven in relation to the woman.

No other evidence or argument was required. The matter was self evident. No evidence could be adduced to

controvert this presumption. If perchance evidence could be permitted by the law to be introduced to controvert

this conclusion, then the presumption would change from being irrebuttable to rebuttable. The presumption could

be rebutted by whatever evidence was appropriate. Prior to surrogacy arrangements, this possibility of the

rebuttal of mater semper certa est did not arise. The fundamental issue in this case is whether, in the

circumstances of this case of surrogacy, such a possibility arises within the current legal and constitutional

framework of this jurisdiction.

101. In examining what the answer should be to the question posed by this issue, it is best to consider the very

strong argument put forward by Ms. O’Toole SC on behalf the Attorney General, that the maxim mater semper

certa est has received a constitutional approval in the pro-life amendment of the Constitution (Article 40.3.3 ).

She has argued that the word mother appears in the Article in connection with pregnancy as unquestionably the

mother who carries the baby the ‘unborn’ (to use the specific description of the Constitution). She argued that

the harmonious interpretation of the Constitution requires that the word ‘mother’ should carry the same meaning

throughout the Constitution and the statutory provisions of the Status of Children Act and all other relevant

legislation. However, I am of the opinion that the word mother in this Article has a meaning specific to the Article

itself, which is related to the existence of the unborn which was held by the Supreme Court in the frozen embryo

case of Roche v. Roche to have an existence only when the foetus was in the womb and not otherwise.

102. I am particularly influenced by the passages cited on behalf of the applicants in the judgments of Fennelly J.

and Geoghegan J. pointing to the specificity of that amendment. It is clear from the judgments of Fennelly J. in N

v. Health Service Executive and J.McD v. PL that the concept of blood relationships or links are paramount in

deciding parenthood. It should be determined what the courts meant by “blood” relationships or links. In the case

of paternity it was easy enough to answer this question. It was paternity established through a DNA link as

proven a by scientific test or otherwise if necessary by a blood test under the 1987 Act. However, Ms. O’Toole

eloquently argued that to proceed from this conclusion, to argue that maternity should likewise be determined on

the same blood test procedure, was to compare “apples with oranges”. She argued that this comparison did not

recognise the fundamental difference between motherhood and fatherhood and pointed to the evidence in relation

to epigenetics and the more dramatic incidence of how a mother’s cocaine consuming habits could result in

physical deformities to children and also the experience of persons born with deformities as a result of medical

treatment by thalidomide and the like.

103. 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. It would be invidious, irrational and unfair to do otherwise. In reaching this

conclusion, I am supported by current legislative practice in the most recent Adoption Act of 2010 where the

legislature recognised the importance of blood relationships by ensuring control at High Court level of the process

by which a mother proposing to consent to adoption would at least be counselled in relation to the importance of

knowing the genetic background of a child which is proposed to be adopted.

104. The final question is whether, in view of the conclusions of this judgment in relation to the fair comparison

between fathers and mothers for the purpose of establishing blood relationships, and the feasibility of a maternal

DNA test to facilitate registration, the application of the maxim mater semper certa est as an irrebuttable

presumption is consistent with fair procedures under the Constitution. The judgment of O’Hanlon J. in S. v. S.,

relating to the irrebuttable presumption in certain cases relating to paternity within marriage, is ample authority to

enable the court to conclude that the presumption of mater semper certa did not survive the enactment of the

Constitution insofar as it applies to the situation post IVF. To achieve fairness and constitutional and natural

justice, for both the paternal and maternal genetic parents, the feasible inquiry in relation to maternity ought to be

made by on a genetic basis and on being proven, the genetic mother should be registered as the mother under the

Act of 2004. The conclusion does not raise the consideration of the best interest of the child which in most cases,

if not in all, would be best served by an inquiry of the genetic interest.

105. As a subtext to the discussions before the Court and by way of final check in relation to the conclusions of

the Court, it is important to assume that the Court inquired in relation to international consensus, in particular

European consensus, in relation to the applicability of the irrebuttable presumption of mater semper certa est. An

tArd-Chláraitheoir indicated that there was, in fact, a European consensus among a number of governments

(including the Irish Government) that the irrebuttable presumption was still accepted internationally as the

appropriate point of departure in relation to dealing with surrogacy questions. This perceived international

position and the widespread historic acceptance of the principle of mater semper certa est, (although not a

specific binding international instrument of legislation), is nevertheless authorative or at least the cause of taking a

pause for thought, in a critical sense, in relation to the conclusions to which the Court has been driven in this

judgment so far. I am strongly of the view that this so called international and historic consensus should not

restrain the Court from making the conclusions so far appearing in this judgment for the reason that the Attorney

General did not advance any detailed comparative law analysis to show why this consensus had arisen (apart

from historical convention), such as instances of some of the constituent jurisdictions of the international

consensus and having by their positive laws actually making the contract of surrogacy absolutely illegal and void,

and introducing other positive law dealing with surrogacy which specifically by a statutory code recognised the

maxim of mater semper. Indeed, in a situation where a jurisdiction had moved legislatively to declare the

surrogacy contract illegal, it would follow that the maxim mater semper certa est would be an irrebuttable

presumption regardless of statutory enactment of same. As distinct from such an atmosphere of positive

legislative enactment banning the surrogacy contract or positively co-defining the irrebuttable nature of mater

semper est, the situation in this jurisdiction is one where positive legislation on this area is totally absent, meaning

that the surrogacy contract in this case is not illegal. As Mr. Durcan SC said, the surrogacy contract and

arrangements pursuant thereto leading to the birth of a child do not lead to any wrong, whether of a criminal or

civil nature in this jurisdiction. The only weakness of the surrogacy contract in the Irish legislative context or in

the context of the common law of this jurisdiction as agreed by all parties and held by the Court that its

performance would not be enforceable by any court. There is nothing in the Irish legislative context that

positively affirms the maxim of mater semper certa est, or for that matter makes illegal any surrogacy contract.

Therefore, the Court should not be swayed from its conclusions or doubt same by reason of the assertion of this

so called European consensus.

106. I am thus disposed to grant declarations in the forms sought in paras. 1 and 2 of the claim of the special

summons herein.”

High Court Order

15. The High Court granted the following declarations:-

(a) A declaration that the fourth named respondent is the mother of the first and second named

respondents, the twins, pursuant to s. 35(8)(b) of the Status of Children Act, 1987, or otherwise

pursuant to the inherent jurisdiction of the Court; and

(b) A declaration that the fourth named respondent is entitled to have the particulars of her maternity

entered on the Certificate of Birth, and that the first and second named respondents are entitled to

have the particulars of their relationship to the fourth named respondent recorded on their Certificates

of Birth.

Notice of Appeal

16. The State appealed against the judgment and orders, filing 29 grounds of appeal, as follows that:-

(i) The learned trial judge erred in both fact and law in not concluding that the gestational mother, the notice party, is

the mother of the children whom she bore and gave birth to, the first and second named respondents, the twins;

(ii) The learned trial judge erred in both fact and law in concluding and declaring that an individual, the fourth named

respondent, other than a gestational mother, could be regarded in law as the legal mother of the children;

(iii) The learned trial judge erred in both fact and law in concluding that maternity is defined only by reference to the

chromosomal DNA in circumstances where the genetic material was supplied by the third and fourth named

respondents, but where the gestational mother was another person, the notice party;

(iv) The learned trial judge erred therefore in placing overwhelming weight on chromosomal DNA as being

determinative of maternity;

(v) The learned trial judge erred in not placing the relevant and sufficient weight on the biological role of the gestational

mother, the notice party, in coming to the conclusion that the fourth named respondent is the mother of the first and

second named respondents;

(vi) The learned trial judge erred in fact and law by not placing sufficient weight on the fundamental distinctions which

exist between maternity and paternity and motherhood and fatherhood, taking into account the evidence presented in

this respect specifically in relation to maternal gestation;

(vii) The learned trial judge erred in law in concluding that blood relationships or links are paramount in deciding

parenthood and that the said blood relationship or link equated to the genetic link only;

(viii) The learned trial judge erred in law and fact in concluding that while the input of the gestational mother to an

embryo and foetus (not containing genetic material from her) is to be respected and treated with care and prudence,

the predominant determinism of the genetic material in the cells of the foetus, permits for a comparison with the law

and standards for the determination of paternity. In this respect, the learned trial judge erred in making an equal

comparison of maternity to paternity and therefore erred in declaring the fourth named respondent as the mother of the

first and second named respondents;

(ix) The learned trial judge erred in law in finding that the term "mother" as it appears in Article 40.3.3º of the

Constitution has a meaning only specific to the Article 40.3.3 itself, which is related solely to the existence of the

unborn;

(x) The learned trial judge erred in law in having insufficient regard to the constitutional meaning of the term "mother"

as stated and anchored in Article 40.3.3 of the Constitution and elaborated upon in the cases of AG v. X [1992] 1 I.R.

1 and Roche v. Roche [2010], 2 IR 321, and which error in law thereby permits the existence of two mothers, an

interpretation in law which leads to constitutional and public law absurdity;

(xi) The learned trial judge erred in law in finding that there is nothing in the Irish legislative context that positively

affirms the maxim of mater semper certa est;

(xii) The learned trial judge erred in law in granting the declaration that the fourth named respondent is the mother of

the first and second named respondents;

(xiii) The learned trial judge erred in law in granting a declaration that the fourth named respondent is entitled to have

the particulars of her maternity entered on the Certificates of Birth of the first and second named respondents and

further that the first and second named respondents are entitled to have the particulars of their relationship to the

fourth named respondent on their Certificates of Birth and described as their mother;

(xiv) The learned trial judge erred in law in failing to have due regard to the role of the birth mother in giving life to a

child;

(xv) The learned trial judge failed to attach any, or sufficient, weight to the role of the birth mother in giving life to the

child, and the influence of the birth mother during pregnancy on the health of the child and on the development of the

child at an epigenetic level;

(xvi) The learned trial judge erred in that he attached no, or no sufficient, weight to the fact that motherhood is a status

to which legal and constitutional rights are attached;

(xvii) The learned trial judge in failing to attach sufficient weight to the legal and constitutional status of motherhood,

failed to address the difficulties and anomalies arising if the lawful mother of the child is other than the birth mother of

the child;

(xviii) The learned trial judge failed to attach any or any sufficient weight to the evidence and/or the implications of the

evidence that within the State many couples availing of assisted human reproduction rely on donor gametes, including

donor eggs, to found a family. In addition, most of these gametes are donated anonymously;

(xix) The learned trial judge erred in upholding that the constitutional or public law status and relationship of

motherhood is determined by, or depends on, the private intentions of, or agreements (if any) between, individuals

who are parties to a surrogacy or IVF arrangement;

(xx) The learned trial judge erred in fact and in law in concluding that the presumption of mater semper certa did not

survive the enactment of the Constitution insofar as it applies to the situation post IVF;

(xxi) The learned trial judge erred in fact and in law insofar as he held that mater semper certa est did not survive the

practice or availability of IVF in this jurisdiction;

(xxii) The learned trial judge erred in finding that in order to achieve fairness and constitutional and natural justice for

both the paternal and maternal genetic parents, the feasible inquiry in relation to maternity ought to be made on a

genetic basis and on being proven, the genetic mother should be registered as the mother under the Act of 2004;

(xxiii) The learned trial judge erred in fact and in law in concluding that the interests of the child concerned would be

best served by an inquiry of the genetic interest;

(xxiv) In holding that the genetic mother is the lawful mother of the child, the learned trial judge failed to have any or

any proper regard to or consideration of the implications for the welfare of a child born to a woman other than the

genetic mother, where all maternal rights are vested in the genetic mother;

(xxv) The learned trial judge erred in fact and in law in finding that the Attorney General did not advance any detailed

comparative law analysis to show why the consensus in respect of mater semper certa est existed. The written

submissions of the Attorney General referred to various reports and papers of European institutions to demonstrate

such a consensus. Further, the learned trial judge erred in law and in fact, in making such a finding, in circumstances

where any detailed comparative law analysis as required by him in the judgment, was not adverted to in the course of

the hearing or raised as an issue by the Court or the parties;

(xxvi) The learned trial judge erred in law and in fact in finding that the international consensus was based on, positive

legal enactments in the jurisdiction concerned rendering surrogacy illegal, or in the alternative enshrining mater semper

certa est as a maxim in their legal code, as a basis for the learned trial judge's findings that the Court should not be

swayed from its conclusions or doubt same by reason of the assertion of what the learned trial judge refers to as the so

called European consensus;

(xxvii) The learned trial judge erred in law and in fact in granting the respondents their costs of the proceedings,

including reserved costs, including the costs of discovery and advice on proofs including the cost of redaction work

carried out by Junior Counsel;

(xxviii) The learned trial judge erred in law and in fact in granting the notice party her costs, to include her costs in

respect of the separate applications made herein in relation to media reporting of the proceedings;

(xxix) Such further or other grounds as may be advanced at the hearing of the appeal herein.

Submissions

17. Written submissions were filed on behalf of the appellants, the respondents, the notice party, and on behalf of the

Equality Authority and the Irish Human Rights Commission, the latter two as amicus curiae.

Submissions on behalf of the appellants

18. In their written submissions the appellants submitted that the maxim of mater semper certa est is an irrebuttable

presumption well established in Irish law, recognised in Article 40.3.3º of the Constitution, and reflected in the case law of

this jurisdiction.

19. The appellants submitted that the “mother” envisaged by Article 40.3.3º of the Constitution is the mother who is both

the genetic and the gestational mother of the child.

20. It was submitted that Article 40.3.3º of the Constitution makes reference only to a pregnant woman and that to find

otherwise would be to suggest that two different women can simultaneously be the mother of a child, one during pregnancy,

and the other whose rights are in abeyance during pregnancy, but can be asserted after the birth of the child.

21. The appellants submitted that any such interpretation is precluded by the provisions of the Constitution, which are

unambiguous and make it clear that the mother of the child is the pregnant woman.

22. It was submitted that the trial judge erred in finding that the case law provides that the relationship and “blood link”

which exists between mother and child exclusively is contingent on the genetic link which exists between them. It was

submitted that this was an incorrect interpretation of the relevant decisions, which in fact place emphasis on the physical

relationship arising from pregnancy between mother and child. The appellants submitted that the trial judge did not afford

adequate weight to the role of the birth mother during pregnancy, and that his analysis of her role places the birth mother in

a subordinate position.

23. The appellants rejected the contention that the Status of Children Act, 1987, placed genetic testing on a statutory basis in

order to determine both motherhood and fatherhood (in the context of declarations of parentage), thereby altering the status

of the mater semper certa rule. The appellants submitted that the purpose of the Act of 1987 was to provide for blood

testing where there had been situations such as fraudulent claims of maternity and mix ups of new born babies.

24. The appellants submitted that the Birth Registration System established in this jurisdiction is based on a recording of

observable facts pertaining to the birth of the child and is not capable of recording later events in the existence of the person

concerned. Any amendment to the register is confined to factual errors. The appellants relied on the decision in Foy v. An

tArd-Chláraitheoir [2012] 2 I.R. in this regard. It was submitted that the first and second named respondents do not have

any constitutional right to have their genetic mother named on their Birth Certificate.

25. The appellants rejected the contention that it would constitute invidious discrimination between mothers and fathers not

to permit genetic testing for the basis of determining motherhood. On this point, the appellants submitted that axiomatic

differences exist between motherhood and fatherhood.

26. The appellants rejected also that the fourth named respondent is suffering from invidious discrimination as a result of a

disability, i.e., the inability to give birth to a child.. It was argued that any discrimination which may be suffered, though

disputed, by virtue of the fact that the woman who gives birth to the child is recognised as the lawful mother of the child, is

based on the reasonable requirement of maintaining the integrity of the birth registration system, the unambiguous meaning

of legal motherhood in the interests of society, and the interests of welfare of children.

27. The appellants submitted that were this Court to uphold the decision of the High Court, in overturning the mater semper

certa principle, it would give rise to unforeseen and unintended consequences which extend beyond the facts of the present

case. The appellants submitted that the issues which arise in the instant case are matters within the policy making role of the

Oireachtas, and accordingly the Oireachtas must provide comprehensively for the rights of parties in the position of the

respondents.

28. Counsel on behalf of the appellants also made various oral submissions to this Court. It was submitted that the trial

judge erred and was in excess of jurisdiction in finding that it would be unconstitutional not to confer the legal status of

motherhood to a genetic mother. It was submitted that the Oireachtas did not intend to alter the meaning of “mother” by the

Status of Children Act, 1987. Further, it was submitted at hearing that the “blood link” as referred to in the jurisprudence of

this Court is not to be construed as referring solely to the genetic link which exists between mother and child. The appellants

adopted the position that, as a matter of Irish public law, the legal status of mother is to be attributed to the birth mother.

The appellants submitted, however, that this status may be transferred to another woman, to the exclusion of the birth

mother, by law within the parameters of the Constitution.

Submissions on behalf of the respondents

29. The respondents submitted that the issues which arise for determination in this case are governed by the Status of

Children Act, 1987, as amended. In particular, s.35, which provides a procedure whereby any person, other than an adopted

person, can seek and obtain a determination as to whether a named person is “his father or mother” or that two named

persons are “his parents”.

30. It was submitted by the respondents that the structure and effect of the provisions of Part VII of the Act of 1987 are

clear, namely, that blood tests can be used to establish whether a person is, or is not, the mother or father of a person. The

respondents submitted therefore that it is the presence or absence of “shared inheritable characteristics” which are

determinative of who is the mother or father of the child. The Act of 1987, therefore, is inconsistent with the proposition

advanced on behalf of the appellants that the woman who gives birth is automatically the mother of the child.

31. The respondents submitted that the maxim mater semper certa est is founded in Roman law, which until more recent

times reflected the biological reality - motherhood followed from the fact of birth. However, it is now known, it was

submitted, that this is not always necessarily accurate and the maxim cannot amount to an immutable rule of law.

32. The respondents submitted that the mater semper certa rule does not take into account scientific developments. Further,

Parts VI and VII of the Act of 1987 do not reflect, or give statutory effect to, the irrebuttable presumption that a woman

who gives birth to a child must always be recognised in law as the mother of that child.

33. It was submitted that, in the absence of specific statutory arrangements, parents of children born by way of surrogacy

must be determined in accordance with s.35 of the Act of 1987. The respondents submitted that there is nothing in the

wording of s .35 to preclude a child born by way of surrogacy from seeking a declaration pursuant to that section.

34. The respondents submitted that the Constitution does not expressly define “parents”, this is a matter which has been left

to be determined by law.

35. The respondents submit that the although temporal scope and effect of Article 40.3.3º of the Constitution are limited to

when the child is in womb, this provision does not to determine who, after the birth, is to be considered the mother of the

child in law.

36. It was submitted that notwithstanding that the clear reference to “mother” in Article 40.3.3º of the Constitution as the

woman carrying the child, it does not automatically follow from this that no other woman may become or be treated as the

mother of the child following birth. The respondents submitted that the woman who is attributed with the legal status of

mother may change after the birth of the child.

37. It was submitted that the Act of 1987 provides an existing statutory structure by which the alteration of maternal legal

status can be achieved. Further, it was submitted that the Constitution does not preclude such an interpretation of the Act of

1987.

38. It was submitted on behalf of the respondents that the Constitution recognises the importance of “blood link” and/or or

genetic link between a parent and his or her child and recognises a duty to protect and vindicate that bond or link.

39. The respondents submitted that the provisions of Parts VI and VII of the Act of 1987 should be interpreted in a manner

which permits and requires the third and fourth named respondents to be recognised as the lawful parents of the first and

second named respondents in order to protect and vindicate their constitutional rights.

40. It was submitted that a failure to grant such recognition has many ramifications for the respondents, such as, inter alia,

the respondents do not constitute a family for the purposes of Articles 41 and 42 of the Constitution. The respondents are,

as a result, denied the rights and protections afforded to a family unit. Further, it was submitted that the exclusion of the

fourth named respondent as mother would have the effect as to deprive her of her rights under Articles 41, 42 and 40.3 of

the Constitution to educate, protect and care for the first and second named respondents and deprive the children of their

correlative rights. In addition to this, it was argued that failure to recognise the fourth named respondent as the mother of the

children infringes on the right of the first and second named respondent to have their welfare protected. Finally, it was

submitted that it impinges also on the property rights and right to marry of the first and second named respondents.

41. In oral submissions to this Court, counsel on behalf of the respondents stood over “large portions” of the judgment of

the High Court judge. These included where:-

(i) The learned High Court judge found that, historically, following parturition the woman who gave birth was the

mother. In light of the availability of birth by surrogacy, the fundamental question was whether “within the

current legal and constitutional framework” it was possible to regard that someone other than the person who

gave birth as the mother.

(ii) The learned trial judge held, at paragraph 101, that the provisions of Article 40.3.3º do not require that

“mother” referred to in the Constitution and in all statute law, in particular the Status of Children Act, 1987, must

mean the woman who gives birth to the child.

(iii) The learned trial judge referred to Fennelly J. in N. v. HSE [2006] 1 I.R. 374 and J. McD. v. P.L. [2010] 2

I.R. 199, and stated that the concept of blood relationships or links are paramount in deciding parenthood.

Counsel for the respondents submitted that this finding goes too far if it suggests that the approach of Fennelly J.

in these cases was that parenthood must in law be determined by the existence of blood or genetic links.

However, counsel submitted, that the decision can and should be understood as indicating that Fennelly J.

acknowledged the importance of the blood or genetic links between a parent and child and the obligation to

appropriately protect such links.

(iv) The learned High Court Judge concluded, at paragraph 103, that a fair comparison can be made between the

manner in which paternity and maternity are assessed.

(v) The learned High Court judge held, at paragraph 104, that to achieve fairness and constitutional and natural

justice, an enquiry based on genetic links should be used to determine maternity, rather than the application of a

universal rule that the woman who gives birth is always the mother.

(vi) Counsel submitted that the High Court judge was correct to hold that maternity should be determined by the

presence or otherwise of genetic links, but should have reached that conclusion based on the provisions of the

Status of Children Act, 1987, as opposed to any constitutional necessity.

(vii) Counsel also submitted that the learned High Court judge was correct to hold that there is no rule of law that

the woman who gives birth to a child is always the mother, having regard to scientific developments which mean

that she may not have provided the genetic material from which the child is created.

Submission on behalf of the notice party

42. Counsel for the notice party adopted, in general, the submissions made on behalf of the respondents to the appeal.

43. The notice party submitted that the maxim mater semper certa est no longer proves that which the State seeks to assert,

as it presupposes that the genetic mother and gestational mother are the same person which is not always, it was submitted,

accurate.

44. The notice party clarified that it did not seek to assert that mater semper certa est no longer operates in Irish law, but

rather that it continues to operate in the form of a rebuttable presumption. It was submitted that for mater semper certa est

to bear any relevance, it must account for developments in science and medicine, and, moreover, the fact that the genetic

mother and gestational mother can be two separate persons.

45. The notice party submitted the definition of “mother” within the Constitution is not to be gleaned solely by reference to

the narrow interpretation of “mother” contained within Article 40.3.3º of the Constitution, which protects the child within

the womb. Reference must also be had to Article 41.2.2º of the Constitution which, unlike Article 40.3.3º, contains temporal

limitation as to how long a woman constitutes a “mother”, and that the duties performed by mothers for the purpose of

Article 41.2.2º of the Constitution go beyond pregnancy and birth.

46. The notice party submitted that the trial judge was correct in equating a “blood link” with a genetic link. Further, it was

submitted that the Oireachtas has, pursuant to s.35(1) of the Act of 1987, expressly acknowledged the relevance and

application of a “blood link” in establishing the mother of a child. The notice party submitted that the “blood link” represents

evidence that may be relied upon in seeking to rebut the mater semper certa presumption.

47. The notice party rejected the argument that the issues which arise in this case are matters for the Oireachtas, arguing

that thus far it has failed to legislate for same. The notice party also rejected the floodgates argument raised by the

appellants, submitting that this case is to be determined on its own particular facts.

Submissions on behalf of the Equality Authority

48. Counsel on behalf of the Equality Authority submitted that the provisions of s.35 of the Act of 1987 did not preclude the

genetic mother of a child being born to a surrogate from being declared the mother of the child in question. Further, it was

submitted that the operation of mater semper certa est as an irrebuttable presumption against the genetic mother’s

maternity, in all circumstances, is not warranted by the legislation itself.

49. It was submitted on behalf of the Equality Authority that Article 40.3.3º of the Constitution does not have the meaning

or effect that the mother of the child under Irish law is always, as a matter of constitutional requirement, the woman who

gives birth to a child. It was submitted that the Constitution must be interpreted in a manner that takes account of scientific

and social developments, that protects the status and role of mothers and their relationships with their children, and affords

protection to children by legal recognition of that relationship. It was submitted that this interpretation is both supported and

required by constitutional principles of equality deriving from Article 40.1 of the Constitution.

50. It was submitted that if mater semper certa est were to operate as an irrebuttable presumption, this would amount to an

inequality of treatment.

51. The Equality Authority submitted further that legislation is necessary to regulate this area of the law. In the absence of

such legislative regulation, however, it was submitted that the issue in the instant case is one that could be determinated by

this Court.

Submissions on behalf of the Irish Human Rights Commission

52. The Irish Human Rights Commission submitted that the European Convention on Human Rights and the UN

Convention on the Rights of the Child provide guidance to the Court in these proceedings.

53. It was submitted that the State, having failed to regulate or restrict the right of persons such as the third and fourth

named respondents to found a family by way of surrogacy, the State cannot deny such persons parental status or prevent

the first and second named respondents from being members of that family.

54. It was submitted that a fundamental consideration in securing the vindication of the rights of the first and second named

respondents is the provision of certainty regarding their familial status. The best interests of the twins require such certainty.

55. The Commission submitted that the first and second named respondents have a right to an identity; that recognition and

respect for that identity goes to the core of their person and is also fundamental to their “place” in society.

56. The Commission submitted that the failure of the State to allow for the recognition of a familial relationship between

persons in the situation of the fourth named respondent and the twins does not vindicate the rights of respondents protected

by Articles 40.3 or 41 of the Constitution.

57. Counsel on behalf of both amici curiae made oral submissions to this Court, namely that this case raises complex social,

legal and ethical issues which are best dealt with by legislation. It was submitted, however, that in the absence of legislation

the situation that the instant case presents must be dealt with by the law as it stands.

58. Counsel on behalf of the amici curiae submitted that mater semper certa est is rebuttable on the basis of DNA

evidence. It was submitted that the question of parentage, is a broad concept. Counsel submitted that it did not contend that

legal status of “mother” is solely to be attributed to the genetic mother. It was submitted, however, that genetics constitutes

an important link by which motherhood may be established. Counsel on behalf of the amici curiae submitted that it is

appropriate in the instant case that mater semper certa est be rebutted by way of genetic evidence.

59. Counsel on behalf of the amici curiae expressed concern that the position adopted by the appellants does not recognise

or vindicate the rights of the twins. Further, it was submitted that the fourth named respondent is entitled to a declaration of

parentage pursuant to s.35(8) of the Act of 1987.

Decision

60. The core issue in this appeal is the registration of a “mother” under the Civil Registration Act, 2004; and the declaration

sought that the fourth named respondent, the genetic mother, is entitled to have the particulars of her maternity entered on

the Certificate of Birth, and that the twins are entitled to have their relationship to the fourth named respondent recorded on

their Certificates of Birth.

The Constitution

61. The Constitution does not give a general definition to the term “mother”. There are two references to “mother” in the

Constitution. Article 40.3.3° of the Constitution describes a very specific relationship, it provides that:-

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the

mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that

right.”

62. Article 40.3.3° refers to the special connection that exists in the particular circumstances which arise after implantation. I

have described this previously in Roche v. Roche [2010] 2 I.R. 321, at p. 373:-

“After the implantation the mother has carriage of the embryo and the embryo enters a state of ‘unborn’, there is

an attachment between the mother and an unborn. It is that attachment which gives rise to the relationship

addressed in Article 40.3.3° where the State acknowledges the right to life of the unborn and the due regard to

the equal right to life of the mother. The interpretation of the ‘unborn’ arising after implantation is a harmonious

interpretation of the Constitution consistent with other rights under the Constitution.”

63. This description of mother is specific to Article 40.3.3º.

64. A much broader approach to mothers is seen in Article 41.2.2° of the Constitution. Article 41.2 states:-

“1° In particular, the State recognises that by her life within the home, woman gives to the State a support

without which the common good cannot be achieved.

2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to

engage in labour to the neglect of their duties in the home.”

65. Article 41.2.2° clearly encompasses a more expansive view of mothers. For example, it would include mothers who are

neither the gestational nor genetic mother of the child.

66. Thus, there is no definitive definition of “mother” in the Constitution.

Mater Semper Certa Est

67. A core aspect of the legal argument in this appeal, especially as advanced by the appellants, was on the status of mater

semper certa est. The appellants submitted that as a matter of common law, it is the woman who gives birth who is the

mother of the child. Unlike presumptions, such as those pertaining to husbands, the question of status of who is a mother is

answered, they submitted, by mater semper certa est, an irrebutable presumption of the common law which provides that it

is the woman who gives birth to the child who is the mother. It was submitted that as a matter of public law, adoption allows

the status of mother to shift from the birth mother to the adoptive mother, under a specific statutory regime. Following the

adoption process, a constitutionally protected family is created. Counsel argued that the determination of the status of

mother, as a matter of public policy, is exclusively a matter for the Oireachtas.

68. On the other hand, counsel for the respondents and the notice party relied on the Status of Children Act, 1987, seeking a

declaration of parentage, submitting that mater semper certa est was an established proposition of fact prior to scientific

advances in assisted human reproduction.

69. Mater semper certa est can be traced back to ancient Roman law, as contained in Justinian’s Digest, Liber Secundus,

IIII, 5 ( D. 2.4.5 Paulus). There it was stated “quia semper certa est, etiam si uologo conceperit: pater uero is est, quem

nupitae demonstrant.”

This is a continuation of an above paragraph of Ulpianus, when read in its entirety reads:- “sed ed si uolgo quasitus sit

filius, matrem in ius non uocabit, quia semper certa est etiam si uolgo conceperit: pater uero is est, quem nupitae

demonstrant.” Unlike a mother who was certain, fatherhood was proved by the existence of marriage. Under Roman law

parents, whether natural or adoptive, could not be summonsed to court by their children. A mother could never be

summonsed to court by her child, whether such child was legitimate or illegitimate, as under Roman law certainty protected

her maternal status: mater semper certa est. This was however different to the position of the father or an illegitimate child,

as under Roman law fatherhood was demonstrated by marriage: pater est quem nupitae demonstrant. An unmarried father,

as a result of the uncertainty of his parental status, could be summonsed to court by his (illegitimate) child under Roman

law.

70. There does not appear to be any evidence that the maxim mater semper certa est formed part of the Common Law.

71. The legitimate child is defined in Blackstone’s Commentaries on the Laws of England (5th edn., 1765). Reference is

made to the maxim pater est quem nupitae demonstrant and Blackstone states at p. 466 that this:-

“…is the rule of the civil law (a); and this holds with the civilians, whether the nuptials happen before or after,

the birth of the child. With us in England the rule is narrowed, for the nuptials must be precedent to the birth; of

which more will be said when we come to consider the case of bastardy.”

72. Blackstone continued to describe the common law surrounding illegitimate children. It was stated at pp. 454 – 455 that:-

“[a] bastard, by our English laws, is one that is not only begotten, but born out of lawful matrimony. The civil

and canon laws do not allow a child to remain a bastard, if the parents intermarry (i): and herein they differ most

materially from our law; which, though not so strict as to require that the child be begotten, yet makes it an

indispensable condition that it shall be born, after lawful wedlock. And the reason of our English law is much

superior to that of the Roman, if we consider the principal end and design of establishing the contract of

marriage, taken in a civil light; abstractedly from any religious view, which has nothing to do with the legitimacy

or illegitimacy of children. The main end and design of marriage therefore being to ascertain and fix upon some

person, to whom the care, the protection, the maintenance, and the education of the children should belong; this

end is undoubtedly answered by legitimating all issue of the same parties, even before wedlock, so as wedlock

afterwards ensues: 1. Because of the very great uncertainty that there will generally be, in the proof that the

issue was really begotten by the same man; whereas, by confining the proof to the birth, and not to the

begetting, our law has rendered it perfectly certain, what child is legitimate, and who is to take care of the

child…”

[Emphasis added]

Blackstone’s statements reflect a different social approach to parenthood, and a time prior to modern medical and scientific

advances.

73. There is no stream of reference to mater semper certa est in legal writings.

Latin for Lawyers (2nd edn, Sweet & Maxwell, 1937) contains various maxims of the common law, and while pater est

quem nupitae demonstrant was contained in the text, no reference was made to either mater semper certa est, or to mater

est quam gestation demonstrat.

74. Similarly, mater semper certa est was omitted from Broom’s Legal Maxims: A Selection of Legal Maxims, (Kersley,

10th edn., Sweet & Maxwell, 1939). On the “Rules Relating to Marriage and Descent” it was stated that “[t]he son must

have been born after the actual marriage between his father and mother; this rule excluded in the descent of the law in

England, the application of the rule of the civil and canon law, pater est quem nupitae demonstrant…” Again, in Broom the

maxim relating to the uncertainty regarding a father is present whereas mater semper certa is not.

75. In Glossary of technical terms, phrases and maxims of the common law (Stimson, University Press, 1881) only

pater est quem nupitae demonstrant is present.

76. Neither mater semper certa est nor the maxim pater est quem nupitae demonstrant is provided for in the following:

Maxims of the Laws of England (Noye, Albany, 1870), Maximes of Reason: Or, the Reason of the Common Law of

England (Wingate, 1658),

The Elements of the Common Lawes of England (Bacon), and, Summary of the Common Law of England (Finch,

Anne Salutie, 1673).

77. Thus, in the legal text books on maxims of the common law which have been consulted, there appears to be no

reference to mater semper certa est as a maxim of the common law. In contrast, the uncertainty of fatherhood is expressed

in the maxim pater est quem nupitae demonstrant.

78. The principle that the mother is always certain, however, is reflected in common law cases. In particular in probate

cases concerning the devising to children born outside wedlock. For instance, Lord Chancellor Eldon in Wilkinson v. Adam

(1 V. & B.422, 1812) held at p. 446:-

“I know no Law against the devising to the Children of a Woman, whether natural or not; as that creates no

Uncertainty. The Difficulty arises upon as Devise to the Children of a particular Man by a Woman, to whom he

is not married.”

This was cited with approval by the Court of Chancery in Mortimer v. West (3 Russ. 370 1827). The Court held that

although a bequest by a father to an illegitimate child may fail, the same was not the case for mothers as:-

“… where they are described as the children of a particular woman, the objects are as certain as if they were

legitimate.”

79. In The Ampthill Peerage Case [1977] 1 A.C. 547, the House of Lords refused an application by a son of Lord

Ampthill, the third Baron, to have the declaration of legitimacy granted to another son, Geoffrey Russell born to a previous

marriage, overturned. It was contended that Geoffrey Russell was not the lawful son of the third Baron and therefore, as he

was not in fact a son of a peer, should not be permitted to succeed to the third Baron’s titles. Lord Simon of Glaisdale

stated, at p. 577, in words that have been repeated in many cases in the United Kingdom and elsewhere that:-

“Legitimacy is a status: it is the condition of belonging to class in society the members of which are regarded as

having been begotten in lawful matrimony by the men whom the law regards as their father. Mother, although

also a legal relationship, is based on fact, being proved demonstrably by parturition. Fatherhood, by contrast,

is a presumption.” (emphasis added)

80. The Family Division of the High Court of England and Wales heard an application for a declaration as to the parentage

of twins born by way of surrogacy in Re W. (Minors) (Surrogacy) [1991] 1 F.L.R. 385. Lord Justice Scott Baker stated at

p. 386 that:-

“Until recently, when the advance of medical science created the possibility of in vitro fertilisation, it was not

envisaged that the genetic mother and the carrying mother could be other than the same person. The advent of

IVF presented the law with a dilemma: whom should the law regard as the mother?...Agreement in this case

has been made possible by the Human Fertilisation and Embryology Bill…” (emphasis added)

This dictum suggests that Scott Baker L.J. was satisfied that there existed no common law rule or maxim in relation to

maternity, it was a fact. The case was resolved by the statutory position adopted by the Human Fertilisation and

Embryology Act. 1990.

81. The issue of motherhood has been addressed in academic writings. In Shatter’s Family Law (Butterworths, 4th edn,

1997 ) at pp. 429-430 it is stated:-

“Until relatively recently a woman by giving birth to a child irrefutably established the fact of mother. For the

vast majority of births, this is still so. However, developments over the last decade in medical science which have

resulted in the availability of new techniques to assist human reproduction have meant that the mere fact of birth

for a small minority of women may not conclusively determine motherhood. For example, if a child born

following the fertilisation of a donor egg with a husband’s sperm using the technique known as in vitro

fertilisation (IVF) or by way of gamete intra-fallopian transfer (GIFT) is the mother of such child the woman

who gives birth or the egg donor? A similar question arises where a woman gives birth to a child following the

use of either of the above techniques where she is acting as a surrogate for a couple whose eggs and sperm were

used for the conception. No statutory provisions have been enacted to date to answer these questions nor has

any case raising such issue yet come before the Irish courts. In the absence of legislation, whether the courts

would favour the birth mother or the genetic mother is a matter of conjecture. It is also uncertain what

relationship in law such child would be held to have to the birth mother’s or genetic mother’s relations. None of

these questions or difficulties arise in the context of a medically assisted conception where the birth mother’s eggs

are used in the conception of the child. In such circumstances, the birth mother and genetic mother are the same

person and she is in law the mother of the child born to her, even if she has agreed to act as a surrogate for her

child’s father and wife.”

82. In contrast to this jurisdiction, the law in the United Kingdom on this topic has advanced in recent decades, and thus the

academic literature is a useful comparative reference. In Law and Parenthood (Barton & Douglas, Butterworths, 1995) it

is stated at p.54 that:-

“[i]t was never established in the common law whether the legal mother of the child was the genetic or

gestational mother, since the problem could not arise until recently. There were, however, dicta to the effect that

gestation was a key factor. In the Ampthill Peerage case, Lord Simon said ‘Motherhood…is based on a fact,

being proved demonstrably by parturition. This obiter dictum derived from the saying, mater est quam gestation

demonstrate (motherhood is proved demonstrably by parturition), but since it is most unlikely that his lordship

could have imagined any other alternative were possible, it is not a particularly convincing citation.” (emphasis

added)

83. In Hayes & Williams’ Family Law (Gilmore & Glennon, 3rd edn, Oxford University Press, 2012 ) under the heading

“Legal Parenthood-Motherhood” at pp. 357-358 it is stated:-

“Lord Simon of Glaisdale in the Ampthill Peerage Case stated that motherhood, although ‘a legal relationship, is

based on a fact, being proved demonstrably by parturition.’ These words do not equate giving birth with

motherhood; they speak of proving motherhood. It could be argued therefore that, as a matter of common law,

the underlying basis for motherhood might be a genetic connection, as evidenced by parturition. Usually of

course there is not issue because the woman carrying the child will also be the genetic mother. However, a

woman can now give birth to a child to whom she is not genetically related, for example where an embryo is

implanted in her which has been created with the egg of another woman. Is the woman who gave birth the

mother of the child or is the woman who donated her egg the mother?” (emphasis in original)

84. In the abstract of an article by D’Alton- Harrison, “Mater Semper Incertus Est: Who’s Your Mummy?” (2014)

Medical Law Review 27 it is stated:-

“In English law, the legal term for father has been given a broad definition but the definition of mother remains

rooted in biology with the Roman law principle mater semper certa est (the mother is always certain) remaining

the norm. However, motherhood may be acquired through giving birth to a child, by donation of gametes or by

caring and nurturing a child so that the identity of the mother is no longer certain particularly in the case of

surrogacy arrangements…”

85. The English literature is noteworthy as it acknowledges the uncertainty surrounding the basis of motherhood in light of

modern scientific and medical advances.

86. Academia has made reference to mater semper certa est as any of the following a “maxim”, ancient dictum”, “norm”,

and “roman law principle”. Indeed there does not exist any agreement amongst the academic literature as to the status of

mater semper certa est. Further, there does not appear to be any authority to suggest that it is either an irrebuttable

presumption or that it is enshrined as a maxim of “Irish public law”, as argued by the appellants.

87. The only reference to mater semper certa est in Irish case law that I can find is that contained in the obiter dicta of

Walsh J. in O’B. v. S. I.R. 316. In that case Walsh J. stated that it was ‘desirable’ to make reference to the decision of the

European Court of Human Rights in Marckx v. Belgium. After finding that the European decision could have no bearing

on the question to be determined on that particular case, he stated, at 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.”

88. It appears to me that in fact the maxim mater semper certa est was not part of the common law of Ireland. It was a

statement which recognised the medical and scientific fact that a birth mother was the mother of a child. The common law

of Ireland has not addressed the issue of motherhood in a surrogacy situation.

Statutory Law

89. Walsh J. in O’B v. S. [1984] I.R. 316 at p. 338, as quoted above, stated that the maxim mater semper certa est applied

in Irish law by reason of ss. 1, 7 and 28 of the Births and Deaths Registration Act (Ireland), 1880. Section 1 of the above

Act of 1880 provided:-

“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 default of father and

mother, of the occupier of the house in which to his knowledge the child is born, and of each person present at

the birth, and of the person having charge of the child, to give to the registrar, within forty-two days next after

such birth, information of the particulars required to be registered concerning such birth, and in the presence of

the registrar to sign the register.”

90. Section 7 of the said Act of 1880 provided:-

“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.”

91. Under Miscellaneous provisions of the Act of 1880, s. 28 provided:-

“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 a 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.

…”

92. However, the said statute reflects merely a factual situation of 1880 – that the birth mother was the mother. Neither

science nor medicine allowed for a situation in which a woman other than the gestational mother was the genetic mother of a

child. The Act of 1880 was repealed by the Civil Registration Act, 2004.

93. The Civil Registration Act, 2004, s. 19 provides:-

“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 the 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.

…”

Section 60(8) of the same Act provides:-

“A person who is dissatisfied with a decision (including a revised decision) of an tArd-Chláraitheoir

may appeal against it to the High Court.”

94. Both the Births and Deaths Registration Act (Ireland) 1880 and the Civil Registration Act, 2004, are similar in purpose.

They are Acts to provide for, inter alia, the registration of births.

95. The Status of Children Act, 1987, as described in its long title, was an Act to equalise the rights of children and to

amend the law relating to legitimacy. It does not provide a statutory structure by which the alteration of maternal legal status

in the situation of a surrogacy arrangement can be achieved.

96. Neither the Civil Registration Act, 2004, nor the Status of Children Act, 1987, as amended, or any other legislation, has

been passed by the Oireachtas to address the issues which arise on surrogacy arrangements. Legislation to date in Ireland

has not addressed the issues arising as a result of surrogacy arrangements. As a significant social matter of public policy it is

clearly an area for the Oireachtas, and it is not for this Court to legislate on the issue.

The Commission on Assisted Human Reproduction

97. The Commission on Assisted Human Reproduction was established in March 2000. The terms of reference approved by

the Government were:-

“to prepare a report on the possible approaches to the regulation of all aspects of assisted human reproduction

and the social, ethical and legal factors to be taken into account in determining public policy in this area.”

98. The Report states that it was established against the backdrop of:-

“…growing public concern that such complex and potentially controversial Assisted Human Reproduction (AHR)

procedures are being practiced in Ireland in the absence of any legislative controls.”

99. The Commission of 25 members, and additional Working Group members, delivered its Report in April 2005. Its

principle recommendation was the establishment of an independent statutory regulatory body to regulate assisted human

reproduction services in Ireland.

100. The Commission also made a number of additional recommendations including, inter alia, guidelines in relation to a

number of aspects of assisted human reproduction, such as the freezing and storing of gametes; super ovulation, freezing

and abandonment of extra gametes etc.

101. The Commission considered how best to address the legal and ethical concerns surrounding surrogacy. It

recommended that surrogacy be permitted, subject to regulation by the statutory regulatory body. In its Report the

Commission stated that, as far as possible:-

“Regulations should be introduced that would protect the various interests of all parties to a surrogacy

arrangement, with particular reference to the interests of any resulting children.”

The Commission noted that it was likely, as the law then stood (and as a corollary as the law currently stands) that the

surrogate or birth mother would be considered to be the legal mother of the child.

102. In relation to legal parentage of a child born through surrogacy, the Commission considered four suitable options open

to the legislature; and recommended that the child born to such an arrangement be presumed to be that of the

commissioning couple. This, the Commission stated, allowed enough flexibility in relation to the legal parentage of the child

in circumstances where there was a fundamental change in the circumstances under which the surrogate mother consented

to the agreement.

103. The Commission recommended that:-

“new legislation should be introduced to establish an independent and regulatory body to regulate the

provision of assisted human reproduction in this jurisdiction”.

The Commission recommended that surrogacy come within the ambit of this statutory regulatory body.

Conclusion

104. There is a core issue on this appeal. It is as to the registration of the “mother” under the Civil Registration Act, 2004.

On the question of – who is the mother? – a quotation from Lord Simon of Glaisdale in The Ampthill Peerage case [1977]

AC 547, has echoed throughout, and was initially followed, in many common law jurisdictions. He stated at p. 577:-

“Legitimacy is a status: it is the condition of belonging to class in society the members of which are regarded as

having been begotten in lawful matrimony by the men whom the law regards as their father. Motherhood,

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

contrast, is a presumption.”

(emphasis added)

105. That statement of Lord Simon is evocative of its time. It reflects a different society, and a time prior to the modern

scientific and medical developments of assisted human reproduction.

106. Following in the slip stream of modern medical developments in assisted human reproduction, other States have passed

legislation to govern and regulate the area.

107. Such statutory development has not occurred yet in Ireland.

108. The appellants have placed great reliance on, what they referred to as a legal maxim, mater semper certa est.

109. As discussed above, I am not satisfied that a maxim, or principle, mater semper certa est has been part of our common

law.

110. However, whether such a maxim or principle was part of our common law or not is not determinative of this case. The

words were a simple recognition of a fact which existed prior to the modern development of assisted human reproduction.

111. There have been statutory developments in other jurisdictions to address issues which arise where there has been

assisted human reproduction. Legislatures have recognised the need to address issues that now arise as a result of scientific

and medical developments enabling children to be born in circumstances such as surrogacy.

112. Neither the Status of Children Act, 1987, nor the Civil Registration Act, 2004, or any legislation in Ireland, currently

address the issues arising on surrogacy birth of children.

113. Any law on surrogacy affects the status and rights of persons, especially those of the children; it creates complex

relationships, and has a deep social content. It is, thus, quintessentially a matter for the Oireachtas.

114. As stated earlier, there is no definitive definition of “mother” in the Constitution. Nor is there anything in the

Constitution which would inhibit the development of appropriate laws on surrogacy.

115. The words mater semper certa est, upon which the appellants laid much stress, is not the basis of Irish law on the issue

before the Court. The words simply recognise a fact, which existed in times gone by and up until recently, that a birth

mother was the mother: both gestational and genetic. This was the factual situation until scientific and medical advances

enabled persons to avail of assisted human reproduction.

116. There is a lacuna in the law as to certain rights, especially those of the children born in such circumstances. Such

lacuna should be addressed in legislation and not by this Court. There is clearly merit in the legislature addressing this

lacuna, and providing for retrospective situations of surrogacy.

117. Under the current legislative framework it is not possible to address issues arising on surrogacy, including the issue of

who is the mother for the purpose of the registration of the birth.

118. The issues raised in this case are important, complex and social, which are matters of public policy for the Oireachtas.

They relate to the status and rights of children and a family. It is important that the rights of the twins, the parent

respondents, the notice party and the family are vindicated pursuant to the law and the Constitution. Neither the common

law nor statutory law to date address the issue of the registration of the fourth named respondent on the certificate of birth

of children born by a surrogacy arrangement.

119. For the reasons given, I would allow the appeal, and quash the orders of the High Court.