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Supreme Court of Ireland Decisions |
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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chlazraitheoir & ors [2014] IESC 60 (07 November 2014) URL: http://www.bailii.org/ie/cases/IESC/2014/S60.html Cite as: [2014] IESC 60, [2014] 3 IR 533 |
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Judgment
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Outcome: | Allow And Set Aside | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
Notes on Memo: | Judgment also Mr. Justice McKechnie. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
32
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.”
15. The High Court granted the following declarations:-
Notice of Appeal
16. The State appealed against the judgment and orders, filing 29 grounds of appeal, as follows that:-
(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 IR 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;
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:
(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.
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:
(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.”
(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.”
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 IR 251, I had occasion to state:
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:
Fatherhood, by contrast, is a presumption.”
47. This is borne out by the statement of Walsh J. in O’B v. S [1984] I.R. 316, when he stated:
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 & Others “Of 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):
64. For the reasons set out above, I would allow the appeal and set aside the order of the High Court.
JUDGMENT of Mr. Justice Hardiman delivered the 7th day of November, 2014.
4. No parallel resolution is possible in this jurisdiction because, almost a quarter century after the English Act, the legislature has yet to address the matter. It intends to do so as a matter of urgency; there has been a Report which clarifies many issues; there has been a Bill the relevant sections of which have not, however, been proceeded with. I wish to join with my colleagues in pointing out the urgency of the need for legislation on this topic. There is, at present, a serious disconnect between what developments in science and medicine have rendered possible on the one hand, and the state of the law on the other. It is as if Road Traffic Law had failed to reflect the advent of the motor car. The failure to adapt the law in relation to developments in Embryology of course, affects far fewer people, but it affects them in a peculiar and intimate fashion which makes statutory law reform in this area more than urgent.
5. Secondly, I am firmly of the view that law reform in this area, is primarily, perhaps entirely, a matter for the Oireachtas. I am sorry to differ in this regard from Mr. Justice Clarke in his judgment in the present case. The extent of this difference should not be overstated. Like him, I acknowledge that the “sole and exclusive” power to make laws under the Constitution is conferred on the Oireachtas by Article 15.2.1. I certainly agree with Mr. Justice Clarke’s comment on this:
9. It is to my mind self evident that the questions as basic as the one just posed cannot be answered by any technical legal exegesis or even by any purely logical process. This is because, at bottom, the question raised is not a legal question or a purely logical question. It is a question of values and attitudes so deep that it is an understatement to call it a matter of policy. In my judgments in Sinnott and T.D ( [2001] 2 IR 545 and [2001] 4 IR 259, respectively) I give several reasons for the conclusion that the Courts should not impose their own opinions on questions which are not, fundamentally, of a legal nature at all.
10. I do not intend to repeat that discussion here, merely to mention it, lest failure to note my reservations regarding the expansive attitude to the Courts power expounded by Mr. Justice Clarke might suggest acceptance of it. The point will inevitably arise in other cases, sooner rather than later.
11. It is plainly necessary for any Common Law judge confronted with the (often very seductive) temptation to change the law in the interests of what he or she perceives to be justice, to be very clear as to the legitimate scope of a judge’s ability to do so.
14. It seems to me that the principles I have outlined above are enshrined in Irish law as well. In Hynes-O’Sullivan v. O’Driscoll [1988] IR 436, this Court was invited to amend the long standing Common Law defence to a defamation action, that of Qualified Privilege. The Court refused to do this, for a number of reasons which are set out by Henchy J. at pages 449-450 of the Report. On the latter page he said:
16. The third point which I wish to make relates to the learned trial judge’s finding that “examination of the genetic material is the sole and determinative” evidence of parenthood.
17. I do not consider that the Court should address this question at all, for the reasons given in an earlier Section of this judgment. But I would specifically depart from this finding of the learned trial judge because I fear that for the Courts to express a specific view on this subject in advance of legislation might tie the hands of the legislature.
18. In particular I am afraid that the view which the learned trial judge expressed, if it stood, would permanently exclude from the status of “mother” a woman who has given birth, having become pregnant with “donor” genetic material. In the English legislation on this topic it is provided that a woman who has given birth by reason of the implantation in her of donor materials, “and no other woman” shall be treated as the mother of the child born as a result.
19. I am apprehensive that to uphold the learned trial judge findings in this regard might preclude the Oireachtas, assuming it to be so minded, from legislating along the same lines. I am far from suggesting that the Oireachtas should (or should not) follow the English precedent, but I do not think that any judgment of the Court should preclude them in advance from doing so if they thought fit.
20. It must be borne in mind, in this context, that the facts of the present case are most unusual. As I understand it, in the large majority of assisted reproduction cases, the woman seeking the assistance is entirely capable of bearing the child but requires the implantation of donor material within her to commence the gestation. In the present case, by contrast, Mrs. R. is quite capable of producing the genetic material but, for anatomical reasons, is unable to bear the child. Apart from any other consideration, I do not think this unusual case is an appropriate one in which to lay down rules of general application. I am very conscious of Mr. Justice Henchy’s cautionary reference to “the tunnel vision imposed by the facts of a single case”.
Judgment of O’Donnell J. delivered the 7th of November 2014
1. This case involves a couple, the third and fourth named applicants, who are married, and who wished to have children. The fourth named applicant was diagnosed with a syndrome called MRKH when she was eighteen years old. As a result of this condition she does not have a uterus and therefore cannot carry a pregnancy. She does have fully functioning ovaries and is able to produce ova. Accordingly the third and fourth named applicants investigated the possibility of surrogacy arrangements. During this process of investigation the fourth named applicant’s sister (the notice party) agreed to act as a surrogate and ultimately all relevant steps in this case occurred in this jurisdiction through the medium of a private clinic providing fertility treatment. The fourth named applicant and her sister underwent the hormone treatment involved in in vitro fertilisation (“IVF”). The fourth named applicant had to take medication to stimulate her ova for retrieval and her sister had to undergo treatment to prepare her body for pregnancy. Ova from the fourth named applicant were fertilised by sperm from the third named applicant and implanted in the uterus of the notice party. The first attempt at implantation was unsuccessful but a second attempt in March 2008 resulted in pregnancy. The notice party gave birth to twins, the first and second named applicants, who were taken home and cared for by the third and fourth named applicants as their family. On the birth of the twins, the third and fourth named applicants and the notice party sought to have the fourth named applicant registered as the mother of the twins (the third named applicant being registered without difficulty as the father, because fatherhood can be acknowledged). However the first named respondent/appellant, the Chief Registrar for Births, Marriages and Deaths, refused on the basis that the registration system was obliged to register the woman who had given birth as the mother of the children born. Accordingly, the notice party was registered under protest as the mother on the birth certificates, and an application was brought to correct the register. Again, this was refused by the first named respondent/appellant, and these proceedings were commenced seeking a declaration that the fourth named applicant is the mother of the twins, and accordingly entitled to be registered as their mother.
2. For ease of identification and reference, and without attributing any legal significance thereto, and indeed without intending any offence, I will in the course of this judgment hereinafter refer to the fourth named applicant as the “genetic mother” or “commissioning mother” and to the notice party as the “birth mother” or “surrogate mother”. The legal issue in this case arises because developments in science mean that it is now possible that the female role in conception, pregnancy and childbirth, which for women fortunate enough not to face reproductive problems is a single process, can now be separated and performed by two or more persons, in this case the genetic mother and the birth mother.
3. While this case is focussed upon a difficult question of the law of registration of births, an area which rarely comes before these courts, it clearly touches upon important and fascinating questions of ethics, science and law. A court must address and decide issues properly coming before it for adjudication. But for reasons which I will address later in this judgment, it is also important that the Court focus upon and determine only those issues which are necessary to be determined. It is, I think, useful therefore to remind ourselves at the outset that this case does not raise any question of the enforceability or validity of a surrogacy agreement or the recognition or enforcement here of surrogacy agreements performed in jurisdictions with legislative codes which permit such agreements. Nor does it involve any dispute between a commissioning parent and a surrogate mother and equally clearly it does not involve the question of the constitutional validity of any legislation regulating or even prohibiting surrogacy agreements. Each of these situations involves complex legal issues which must be addressed and determined if and when they arise in the context of facts which may define and illuminate the issue to be determined. But they do not arise here. What this case does involve is a narrow but important point of the law of registration: who is to be registered by the first named respondent/appellant as the mother of the first and second named applicants? The Court has received written and oral submissions from the parties, the notice party and the amici, and I have found them very useful in a broad sense in understanding the background and nuances against which this issue must be determined. However, the issue is and remains a narrow one: under the Irish law of registration, who is entitled to be registered as the mother of the applicant children? Before addressing that question, it is desirable to make some general observations to set the context in which the legal issue raised in this case is to be determined.
4. First, the issue raised in this case arises because of at least two extraordinary but unconnected advances in science which occurred in the late 20th century. The discovery by Crick and Watson in 1953 of the structure of DNA as a double helix was an extraordinary scientific achievement but it was many years before it was possible through further advances to develop practical applications of this discovery. The discovery of DNA, while important in a therapeutic context, has also had a significant impact in the field of testing, and in particular criminal investigation. Until relatively late in the 20th century, blood testing was essentially negative, it was possible in some cases to exclude any connection, but not to positively establish connection. However the realisation that an individual’s DNA is essentially formed at the point of conception and by the provision of DNA from the male and female meant that it was in theory, possible to establish identity and also parental, filial and family connections with a high degree of certainty. Significant as this science was in the field of criminal investigation, its impact on the law of domestic relations might have been relatively marginal. The irresponsible seducer of the Victorian melodrama might no longer be able to gamble on denying parentage and the possibility of hospital confusions and mix-ups at birth might have been reduced, but without the advances in assisted reproduction made in the 1970s, the development of the science of DNA would only have led to a more efficient testing regime to identify persons whose role and status had been understood for millennia: the male/father and the female/mother. On its own the discovery of DNA did not alter those roles. By contrast, the science involved in the first successful birth as a result of in IVF (developed by Edwards and Steptoe) in 1978 was itself relatively simple, albeit discovered after years of frustrating research, and its impact was immediate and enormous. It has been estimated that in the two decades that followed the first successful IVF pregnancies, 40,000 pregnancies were generated using the technique, and it must be presumed for parents struggling with the pain of infertility and who, only a few years earlier would in all probability have been childless. The issue arising in this case flows directly from those two remarkable achievements of science in the late 20th century.
5. Second, despite the advances in the field of assisted reproduction, the enormous impact of these advances on the most intimate parts of human lives, and the fact that assisted reproduction has been provided on a private basis in Ireland for some time now, this is an area which is devoid of legislative guidance. The absence of legislation does not mean an absence of assisted reproduction; rather it means an absence of regulation. Generations of children have now been born in Ireland through assisted reproduction into a legal half world where the only constraints on the process are those imposed by the dictates of a private market and the sense of responsibility of practitioners. Furthermore, Irish society in general has not addressed the important issues that arise in the field of assisted reproduction. In this regard, surrogacy arrangements pose particular problems. It might be recalled that the 1984 Warnock Report in the UK (Report of the Committee of Inquiry into Human Fertilisation and Embryology) into the field of assisted reproduction, which recommended regulation of the field, also recommended against permitting surrogacy arrangements, saying: “it is inconsistent with human dignity that a woman should use her uterus for financial profit and treat it as an incubator for someone else’s child” (p. 45) (see the admirable discussion in Madden, Medicine, Ethics and the Law (Dublin; Butterworths Professional; 2011; 2nd ed.). In addition to those who have ethical or moral objections to the process, there are also those who oppose it because of concerns about the commercialisation and commodification of women’s reproductive organs. Even the limited survey of the position in different states in the world, and particularly in Europe, shows that there are many different possible approaches which require to be considered. Should surrogacy be permitted at all? If it is to be permitted are there any restrictions such as age or marital status on the person seeking it or on the person acting as a surrogate? Should it be available only to those with reproductive difficulties or should it be available to anyone who seeks it for reasons of lifestyle or convenience. Can payment be made to a surrogate for services rendered? If so is there a limit? If it is not permissible to pay the surrogate mother is it possible to make payments to a clinic providing the technical assistance and if so is there any limit on such payments? What is the status of any agreement between the parties? What is to occur if there is a disagreement during the course of the pregnancy arising perhaps from the death of one of the commissioning parents, a separation or divorce, a change of mind on the part of the surrogate or perhaps the detection of significant abnormalities? These are only some of the questions which arise and must be addressed. Alongside each of them is a further difficult legal question: in the event that some regulations are imposed on surrogacy arrangements what is the position when, as inevitably will happen, children are born where those regulations have been breached? If for example, the consequence is that the surrogacy arrangement cannot be recognised or given effect, and the children do not become members of the family of the commissioning parents, then they will, through no fault of their own, exist in something of a new legal limbo. On the other hand, if notwithstanding breach of some or all of the regulations, the surrogacy agreement is enforced, and the children become members of the commissioning parent’s/parents’ family, then the system of regulation may become irrelevant.
6. These are not easy questions. However, and without attributing blame, it is surely wrong that Irish society has not had the opportunity to address these questions and express its views ultimately though the people’s representatives in the legislature. It is also a cause for regret that The Irish Council for Bioethics no longer functions. In a field of rapidly changing science, strong beliefs and stronger emotions, neutral information, thoughtful reflection and interaction between disciplines is invaluable. The absence of legislative guidance is also surely wrong from the perspective of couples struggling with the pain of infertility and the considerable stresses of fertility treatment. They should not be required to become a vociferous pressure group to achieve more general regulation, most of all when the issue involves an intimate matter which few couples would wish to publicise, particularly if it means exposing their children to the possibility of ill informed comment and worse. Finally however, it is surely most clearly and profoundly wrong from the point of children born through an unregulated process into a world where their status may be determined by happenstance, and where simple events such as registration for schools, attendance at a doctor, consent to medical treatment, acquisition of a passport and even joining sports teams may involve complications, embarrassment and the necessity for prior consultation with lawyers resulting in necessarily inconclusive advice. This Court in clear and forceful terms drew attention to the absence of regulation in its decision in Roche v. Roche [2010] 2 IR 321. The need for legislation is even more urgent today.
7. Third, the absence of legislative action means that citizens will inevitably seek a resolution of their problems through litigation. Courts cannot abstain from determining a legal issue which is properly before a court and which requires to be decided. But this does not mean that the Court can provide a legislative scheme, whether detailed or simple. Instead a decision on a constitutional matter can be a frustratingly binary choice between upholding legislation, or striking it down and leaving a gap which it is for the other constitutional organs to fill. In some cases the consequence of a decision on constitutionality may even limit the options for legislation. In the case of statutory interpretation, a court’s function will be to declare what the law is, rather than what it ought to be. Any such declaration of the law will however inevitably affect other cases. Thus in this case for example, the issue might be said to be whether under the Civil Registration Act 2004 the genetic mother or the birth mother is to be registered on the birth certificates. The choice of one excludes the other and will apply to all cases.
8. Fourth, it may seem strange at one level that this case which touches on so many important ethical and philosophical issues should focus on an issue of registration. The registration of births, marriages and deaths is an important but largely colourless process, necessary in any developed society. Like the census it reflects the Victorian urge to systematise, organise and record. As such it might be said to be an unlikely subject for contention. If for example, a birth certificate is no more than a snapshot in time albeit an important one, and a recording of a fact, then it might reasonably be questioned what difference it makes if the fact of birth is recorded? However the certification process is a method by which the law determines certain status. Sir Henry Maine observed that the development of the law had been a development from status to contract. But that observation, true in many areas of the law, only emphasises the significance of those areas where status remains important: for example, citizenship, birth, parentage, death and marital status including not just whether a person is single, married or divorced but also the definition of those persons who may achieve that status. To a degree, the law and society assumes that status follows from or is at least established by, registration and certification. Important legal consequences may follow from the achievement or termination of a particular status not least in relation to inheritance. Certification, while often routine, is therefore important. It is significant for example that where the Status of Children Act 1987 (“the 1987 Act” or “the Act of 1987”) contemplates a process for the declaration of parentage by a court, it provides for consequential registration, or re-registration, of birth and the issuance of a new certificate.
9. Fifth, and finally, it is important to observe that the facts of this case are somewhat unusual. It is, we were told, a much more common female infertility problem that a woman would require the donation of ova, rather than as here where a woman might be in a position to produce an ovum but not be capable of carrying a pregnancy. At least one formulation of the applicants’ case involves an invitation to this Court to update the law or to make a choice between competing definitions of mother. It is a relevant consequence that such a declaration would apply generally and to all situations, so that previously registered mothers and fathers could lose that status and anonymous donors of sperm and ova could become entitled to declarations of parentage and registration. It might be said that this is a possibility more theoretical than real and that the current system allows commissioning parents in that situation a facility denied to the parents in this case, of having their parentage registered, in the case of a woman by birth, and in the case of a father by acknowledgement, and in neither case are they obliged to bring the arrangements to the attention of the registrar. Nevertheless it is in my view not an irrelevant consideration, insomuch at least as this is a matter of discretion rather than legal interpretation. These then are only some of the considerations forming the background to this case.
The High Court Judgment
10. In an extensive judgment the High Court Judge considered detailed evidence from distinguished experts in the fields of genetics, pregnancy and birth and in particular relating to the developing field of epigenetics. Epigenetics was described as the process of gene expression whereby some genes are turned off and some turned on, and significantly for present purposes, this can occur through a number of factors including what happens in the womb. The Court also considered such references in the case law as were invoked by respective parties. The State, through the first named respondent, maintained that the person to be registered was the person who had given birth. This, it said, was no more than an application of the ancient maxim of mater semper certa est, the mother is always certain, or perhaps more precisely - ascertainable. The applicants on the other hand, together with the notice party, contended that the evidence showing the genetic link between the fourth named applicant and the first and second named applicants meant that the fourth named applicant was entitled to be registered as the mother of the first and second named applicants. Although clearly an issue such as this, or any issue concerning surrogacy has not previously been considered in any detail by an Irish court, the parties sought to mine the case law to extract dicta supportive of their respective positions. In particular, the applicants relied upon dicta arising principally in the field of contested adoptions in which the Court has considered the importance of what was described as the “blood link” between a mother and her child. Once such dictum was that of Kenny J. in G. v. An Bord Uachtála [1980] I.R. 32 at p. 98:
12. Having recorded the evidence and arguments the Court came to certain conclusions. While acknowledging the developing field of epigenetics, it was found, unsurprisingly, that the influence of such epigenetics was not of such significance as to alter what it described as the “overriding significance of chromosomal DNA for the purpose of determining identity and inherited characteristics leading to a conclusion of the paternity and genetic maternity” (para. 98). The judge further rejected the State’s argument that Article 40.3.3o of the Constitution had embedded an interpretation of motherhood so as to give constitutional approval to the mater semper certa est maxim. While accepting that the Article used the word “mother” in the sense of the person carrying the child, the Court concluded, relying on the decision of this Court in Roche v. Roche, that Article 40.3.3o had been adopted in the very specific context of an anti-abortion amendment and did not have any broader significance and certainly did not determine the issue of entitlement to registration. The core of the judgment is to be found in a passage at paragraph 103:
13. Having reached these conclusions, the Court turned to consider the evidence of what appeared to be an international or at least European consensus that a presumption of mater semper certa est was the appropriate starting point in dealing with the surrogacy question. This evidence was given by the registrar and comprehended the fact that even in those countries where surrogacy is permitted, the birth mother is first registered as the mother. Then, if appropriate, commissioning parents may apply to change the birth certificate. If this application is successful second birth certificates may be issued with evidence of the original circumstances of birth left on the register too. The trial judge expressed the strong view that any so called international and historic consensus of registration of the birth mother should not restrain the Court from coming to the conclusions it did, because no reasons had been advanced to show why any such consensus had arisen. As a result, the Court granted declarations that the fourth named applicant was the mother of the first and second named applicants pursuant to s. 35(8)(b) of the Status of Children Act 1987 and furthermore, that she was entitled to be registered as mother on the birth certificates and the first and second named applicants (the children) were correspondingly entitled to have her registered as their mother.
14. Finally the Court went on to consider what it described as “alternative arrangements”. While acknowledging that it was not strictly necessary to do so in the light of the findings, nevertheless the Court expressed the view that it was feasible for the parties in this case to agree, and then the notice party could consent to the twins being placed for adoption with the third and fourth named plaintiffs and that it was likely “subject to the formalities, that such adoption would be sanctioned with the least possible difficulty” (para. 108). In such an event, the problems envisaged with inheritance, taxation and marriage would be effectively eliminated. However this conclusion did not affect the outcome of the case. The Court considered that the fourth named applicant was entitled to registration as the mother as a matter of law. The respondents have appealed against the judgment, and the matter has been fully argued in this Court by all the parties and the amici curiae.
Adoption
15. It is necessary first to consider the ancillary findings made by the High Court Judge that adoption was possible in this case since at the time of birth, the notice party/surrogate/birth mother was no longer married and could place the children for adoption, since it was argued that this removed any necessity to address the more general issues. The High Court considered that adoption would regularise all of the “difficulties complained of in this case” (para. 83) as on adoption, the children would become legally and indisputably the children of the third and fourth named applicants. This finding was relied on by the appellants (heretofore “the respondents”) in this appeal. It was argued that the finding undermined the decision of the High Court both in practical and legal terms. Adoption was a route which solved in a practical way all the applicants’ difficulties, present and anticipated. Furthermore, if this was so, then a procedure was available to deal with the applicants’ collective difficulty, and accordingly it could not be said that initial registration of the birth mother as mother, subject to subsequent registration of the fourth applicant on adoption, was an unfair procedure and inconsistent with the Constitution. It was acknowledged that the applicants objected to the concept of adopting children they regarded as their own and that they maintained that the fourth named applicant was entitled to be registered as their mother as of right, and to the exclusion of any reference to the birth mother. It was suggested however that whatever psychological validity and importance this might have for the applicants, the law could not, or at least should not, be used to bend the facts to suit a personal narrative, however important that was to the individual. The fact was that the children were born to another woman and that fact could not, and should not be entirely erased. Furthermore, for reasons which will be considered later in this judgment, the appellants argued that a uniform practice of initial registration of a birth mother was an important part of the system of registration.
16. If it could be shown that the adoption procedure would necessarily, and as a matter of certainty, lead to the children becoming the lawful children of the fourth named applicant without difficulty, then in my view that would have had a significant impact upon this case, and removed the necessity for this Court, and more importantly the High Court, to consider the difficult issues raised here, and which have important consequences for many other citizens not represented in these proceedings. (It is more important that where appropriate, the High Court abstain from addressing far reaching issues which do not properly require determination, because if it does not do so, it may not be possible for this Court to refrain from addressing such issues. The decision of the High Court will stand as a declaration of law, which this Court may then be required to address). Furthermore, I imagine that if there was serious practical difficulty in relation to inheritance, taxation or marriage, the parties would have been well advised to follow the route of adoption which, even if cumbersome, at least avoids the necessity of engaging with the stress, expense and disclosure involved in legal proceedings. However, in my view it does not matter if these proceedings were commenced for reasons of strongly held principle, or obduracy, or a more general desire to drawn attention to a lack of regulation for a surrogacy, or a mixture of these factors and others. I have come to the conclusion that the applicants were entitled to maintain these proceedings and have them determined. I would be very reluctant to decide this case (or more accurately abstain from deciding it) on the basis that an adoption process was readily available, at least on the limited argument and information advanced. Out of court solutions often appear beguilingly simple when viewed from the perspective of the difficulties encountered in court, but become much more difficult once investigated. Here I would require to have much greater clarity about the legal consequences of the fact that the birth mother/surrogate mother although separated was still legally married at the time of birth, and about what precisely is involved in the process of placing for adoption, the time scale and procedures involved and the degree of assurance, legal as well as practical, that the applicants would indeed become the adopted parents, before I would be prepared to decide that adoption by the commissioning parent or parents was both available, and removed all possible difficulties so as to render these proceedings either unnecessary in fact or ill founded in law. Fundamentally however, the adoption process could only resolve the difficulties posed by surrogacy, and assisted reproduction generally, if the legislation specifically addressed those issues, and the one fixed point in these proceedings is that that is something which Irish legislation has, shamefully, failed to do. It would be a matter of pure happenstance if a current adoption regime was able to resolve all these applicants’ practical and legal difficulties. I am not satisfied that it would, as anything other than a nod and wink Irish solution to an Irish problem. In my view therefore, the applicants are entitled to maintain these proceedings and the Court must address them.
17. The High Court Judgment is a careful consideration of a very difficult area. Considering itself to be faced with a choice between a birth mother and a genetic mother, it eschewed ideology, and followed what it considered was the best scientific knowledge, and in doing so can be said to have made new law. In deciding individual cases courts may unavoidably establish principles which determine all other disputes raising the same issue of principle (at least until those principles are themselves altered by further decisions, legislation or possibly constitutional amendments). That is in one sense to make law, even if it occurs much less often than students and commentators imagine or would perhaps like. But such decision making, even with far-reaching effect, is not legislation nor is it the same as legislation. A court’s function and skill is in deciding justly the particular case before it, and it does not necessarily have full visibility of, or information in relation to, all other circumstances potentially affected by its decision. Furthermore, it is constrained as to how it can decide a case. The court is required to decide a case according to the law. It is not free to decide a case simply because it considers the result popular, wiser or more attractive, or indeed because it affects an acceptable if illogical compromise between competing interest groups. The court’s options are limited. Taking this case as one example, the decision in the High Court appears to have been one to all intents and purposes between the genetic mother and the birth mother, and the choice of one excludes the other. Even then, whoever is registered must stay registered for all time, as I understand it, no one suggests that it is open to the Court to create a scheme for sequential registration. Nor can it decide that if certain requirements are followed, the commissioning parent is to be treated as the parent; still less can it decide what those requirements are. In principle, and subject to the Constitution, a much wider range of options are open to the Oireachtas.
18. These structural constraints impose limits on the manner in which courts develop the law. In most cases courts develop principles incrementally and avoid so far as possible sweeping generalisations, however much that might be applauded by the law student in search of a simple or memorable principle, or commentators who happen to agree with the outcome. Sometimes this incremental approach is couched in terms that the Court should not usurp the functions of the legislature. In this jurisdiction, courts on occasions point to the sole and exclusive power to legislate conferred upon the legislature by Article 15.2 of the Constitution. But in my view, this limitation is perhaps better understood as a limitation on the powers of courts which is inherent in the nature of courts and the administration of justice. Sometimes the administration of justice may indeed require a decision which has dramatic and far-reaching implications. If the decision is truly required to decide the case then it is not a valid objection that it sweeps far and it would not be contrary to Article 15.2. But such a step must be truly required by the obligation to administer justice in the case, even considered broadly. If it is not necessary to decide a particular issue or decide it in a particular way to decide the case, then it may be necessary, or at least wise, not to decide it.
Submissions of the Respondents/Appellants
19. The appellants’ arguments focus on the broader implications of the determination in the High Court. Acknowledging as they must, that little harm could be said to be caused if this fourth named applicant is registered as the mother of the infant applicants, the appellants nevertheless argue that if the judgment of the High Court is correct, it must follow that the provider (female or male) of genetic material is always entitled to be declared the mother or the father as the case may be, and registered accordingly. The condition that so unfortunately afflicts the fourth named applicant and means that she does not possess a uterus capable of permitting the implantation and gestation of a fertilised ovum, is relatively unusual (indeed it was said that this might be one of the first cases in Ireland of surrogacy using the ovum of the commissioning mother). It is accepted on all sides in this case however, that it is much more common that women experiencing fertility difficulties would have the reverse condition: while having a functioning uterus, might not be able to produce ova, or at least ova capable of being fertilised and implanted naturally. A male partner may desire children but be unable to produce sufficiently fertile sperm, and the couple may accordingly seek a donor. As the law currently stands, in these more commonly encountered cases, the male and female partner will be registered as parents without difficulty: the female because she gives birth and the male because he is either the husband or has acknowledged parenthood. But the appellants point out that at least in theory, all of these people and their families would be at risk of losing their status and have their legal position thrown into uncertainty if the High Court Judgment is correct. While it might be fanciful to imagine a stream of donors of ova and sperm coming forward to assert parenthood, it is highly undesirable that these families’ legal status should be conditional and defeasible as would be the case if the High Court Judgment is correct. Furthermore, since status is relevant to issues of inheritance and taxation and therefore money as well as relationships, it is not just as implausible that for example, on marital breakdown, or on issues of inheritance, spouses or siblings or other relatives may seek to deny to others the status of parent, child or sibling as the case may be, if as the High Court seemed to conclude, genetics are decisive in determining parenthood.
20. It might be argued (although this issue does not appear to have been considered in the High Court), that this alarming scenario is not so much a consequence of the ruling of the High Court as the unsatisfactory state of legislation. Since assisted human reproduction has been possible, and has been at least tacitly permitted in Ireland in the sense that it has not been directly prohibited or even regulated in any way, anomalous outcomes are possible whoever the Court decides is required to be registered on the birth certificate initially. The law, it might be argued, cannot be decided on the basis of a head count. A decision must be made on the basis of the best available evidence. If the result arrived at on this basis is insufficiently nuanced, then legislation can be introduced and indeed a court decision might be the best impetus for such legislation. This argument has some merit. However, the appellants go further and argue that a consequence of the High Court Judgment is to impose a significant straight jacket upon the types of legislative solution that might be introduced. Thus it is argued that if the High Court Judgment means only the genetic parent could be registered as the father or mother, and if this is constitutionally required (as the judgment seems to hold) then it would follow that any legislative regime which did not accord with it would be invalid. Thus, for example, it might not be possible to introduce a regime which would require initial registration of a birth mother followed by a process for the recognition and approval of a surrogacy agreement and subsequent re-registration. There are many public policy reasons favouring such a process, and it is a solution adopted in other countries, but it is argued that if the High Court Judgment was correct, it could not be legislated for here. Far from stimulating legislation it is said, the judgment hinders it.
The Submissions of the Applicants
21. Faced with these arguments, counsel for the applicants have taken a more nuanced line. Arguing in favour of the outcome arrived at in the High Court, counsel stopped short of supporting those portions of the High Court Judgment, particularly that quoted above, which seemed to hold that registration of the genetic mother was constitutionally required. Instead it was argued that registration of the genetic mother was required, as it happened, by the current state of Irish legislation and in particular those provisions introduced by the 1987 Act relating to blood testing for proceedings determining parentage. Counsel, in a careful and intricate argument, sought therefore to support the conclusion arrived at in the High Court but on a basis with less far-reaching implications for future legislation.
22. It is argued that “mother” was not defined either in the Civil Registration Act 2004 (“the 2004 Act” or “the Act of 2004”) or more generally, perhaps for the reason that it was not considered necessary. Section 50 of the 1987 Act provides that, so far as that Act relates to declarations of parentage, it is to be read together with the Births and Deaths Registration Acts. The 1987 Act plainly lays emphasis upon blood testing as a method of proving parentage. In keeping with the science known at the time, it was understood that blood testing could exclude, but not positively prove, parentage. Thus s. 40(2)(b) of the 1987 Act provides that where a blood test was ordered by the court, the person taking the test should report to the court:
“(i) whether the person to whom the reports relates is or is not excluded by the results from being a parent of the person whose parentage is in question, and
(ii) if the person to whom the report relates is not so excluded, the value, if any, of the results in determining whether that person is a parent of the person whose parentage is in question”.
23. From these statutory provisions in relation to blood testing and reporting, two related conclusions are drawn by the applicants: first, the law was and is guided by and reflective of the best available scientific knowledge and second, and more particularly, blood relationship (if provable) is understood, and intended, to be the determining feature in parentage. In 1987, so the argument runs, blood testing could disprove parentage and the only thing limiting its capacity to positively prove parentage was the then limitations of the science. But as between blood and birth (which arguably was the issue in this case), the provisions of the 1987 Act make clear that parenthood is in principle to be determined by blood. Now that DNA testing is available, that means that genetics determine parenthood, and more specifically, motherhood.
24. The next step in the reasoning is the decision of the High Court (Budd J.) in G.N. v. K.K. (unreported, 21st of December 1993) in which it was accepted that the blood tests contemplated by the 1987 Act could include DNA testing which might not simply exclude paternity (which was an issue in that case) but might positively establish it. Thus the 1987 Act, it is argued, must be understood as showing that paternity or maternity is to be established by blood testing and, now, by DNA testing.
25. This argument is reinforced by a consideration of the development of parallel provisions of the law of the United Kingdom. There, blood testing was provided for by s. 25 of the Family Law Reform Act of 1969, and such testing was introduced in 1972. This testing was to be carried out to identify the presence or absence of “inheritable characteristics of blood”. From the 1st of April 2001 scientific tests could be used rather than merely blood tests and the criterion was amended to provide for the identification of “inheritable characteristics of bodily fluids or bodily tissue”. By way of comparison it should be said that s. 37 of the 1987 Act defines a blood test in similar terms as a test made “with the object of ascertaining inheritable characteristics”. Importantly, UK law provides for the regulation of assisted reproduction in general and for surrogacy agreements under limited circumstances, in the Human Fertilisation and Embryology Acts of 1990 and 2008. It is pointed out that that legislation is careful to specifically provide that a woman who has a child by IVF is a mother, and s.25 of the Family Law Reform Act 1969 was amended to provide that persons who had children by artificial insemination or IVF were not to be excluded from parentage because of the absence of “inheritable characteristics”. It is argued that it should be deduced from this that without such an express saver such a person would have been excluded from the definition of parent. In simple terms, it is therefore argued that the UK, by providing for blood and now scientific testing, made genetics the determinant of parenthood generally. Finally, it is argued that Ireland adopted essentially the same approach in permitting blood testing (which must now be understood to include genetic testing) with the same consequence, but had made no such similar saver. The conclusion for present purposes is that motherhood and maternity were, by statute, to be determined by genetics and not by birth. An irrebuttable presumption of mater semper certa est could not therefore stand and the presumption must be capable of rebuttal just as it was held in S. v. S. by O’Hanlon J. that an irrebuttable presumption of legitimacy did not survive the coming into force of the Constitution, and that a man must have the right to disprove parentage. (It may be observed that this last step is not essential to the argument since if the applicants are correct, “mother” in the 2004 Act means, in effect, the genetic mother as a matter of statutory interpretation alone. If this is correct, then any irrebuttable presumption of maternity even if it existed, has simply been overridden by statute, and it is not necessary to resort to the Constitution to achieve that outcome)
26. It should be observed that the argument made here is made by reference to what is to be deduced from the statutory provisions and the applicable case law, rather than from their application in this case. Although a declaration was sought that the fourth named applicant was the mother of the first and second named applicants, the procedure under the 1987 Act was not invoked, no tests were ordered and no reports made pursuant to s. 20 of the 1987 Act. Counsel for the applicants argued merely that on a true interpretation of the statutory provisions taken together “mother” in Irish law, for the purposes of registration on birth, was, at least in cases of dispute, to be determined by reference to genetics rather than the fact of birth.
Conclusion
27. It becomes important, indeed critical, to define with as much precision as possible the issue before this Court. The applicants sought and were granted a declaration that the fourth named applicant was the mother of the first and second named applicants. But this was not a declaration in the abstract. It was a necessary step to the second declaration granted namely that the fourth named applicant had a right to have the birth certificates of the first and second named applicants altered, and to be entered upon those birth certificates as their mother, to the exclusion of the notice party who had been so registered by the first named respondent. The first and second named applicants had, it was held, a corresponding right to have the fourth named applicant registered on their birth certificates as their mother. I consider it therefore both fair and accurate to identify the precise question for this Court as this: who, on the acknowledged facts, is entitled to be registered as the mother of the first and second named applicants on their birth certificates, pursuant to the provisions of the Civil Registration Act 2004? That is in turn essentially a question of statutory interpretation. The interpretation of statutes may of course also involve the interpretation of the Constitution both as potentially influencing the interpretation of the statute where that is required and possible, or as possibly leading to the constitutional invalidity of the statute as interpreted. But in the first place, I consider that it is useful to approach this as a simple question of statutory interpretation: what does the 2004 Act mean when it refers to “mother”? In particular, does it mean in this case the woman whose egg is fertilised and which develops through pregnancy into the baby who is born, or does it mean the woman who gives birth to the baby, or perhaps to both?
28. This is not an easy question but it is useful to identify just what is not involved. This is not a question of whether a genetic or a gestational mother provides more genetic material to a child. Nor does it involve a question of policy as to who should be registered as a mother where the gestational and genetic mothers are not the same person, now that we know for the first time in human history that it is possible to separate the functions of reproduction and birth into at least two if not more parts which can be carried out by at least two, if not more, people. Nor does this case involve any question of the validity or enforceability of surrogacy agreements in this or in any other case. Nor, at least in my view, does it involve any inquiry into the common law predating legislation such as the Births and Deaths Registration Act (Ireland) 1880 (“the 1880 Act”), or the existence and scope of any maxim of mater semper certa est. To approach this case on the basis that because the word “mother” is not specifically defined in the 2004 Act it does not have a specific meaning in the relevant legislative context, and that it is therefore necessary to consider the existence and persistence of a Latin maxim, or the state of 19th century common law, is in my view an error. We should not be too quick to abandon the statutory context.
29. Concepts such as presumptions whether rebuttable or irrebuttable, and phrases and maxims may often be very useful to lawyers since they express reasonably precisely concepts which are well understood and in that way, as helpful shortcuts, may assist reasoning. However, if not properly deployed, at times they can deflect from, rather than assist reasoning. It is true that Walsh J. said in O’B. v. S. [1984] IR 316 :
30. The 2004 Act is very similar in structure to the 1880 Act because of course it performs the same function. The relevant provisions of s. 19 containing the obligation to register the birth of a child have been set out. Thus it is sufficient to point out that the provisions apply “when a child is born in the State” and a duty is imposed upon the parent and others to give “the required particulars of the birth” to the registrar. The required particulars are set out in Part I of the First Schedule of the 2004 Act and include: forename(s), surname, birth surname, address and occupation of mother, former surname(s) (if any) of mother, date of birth of mother, marital status of mother, personal public service number of mother and birth surname of mother’s mother. The same details are required in respect of the father.
31. This is similar to the structure of the Births and Deaths Registration Act (Ireland) 1880. Section 1 of that Act provided that:
32. When this issue is approached as the narrow question of statutory interpretation of the identification of the person required to be registered as mother, it becomes less complex. It becomes apparent that the Act of 2004 follows the 1880 Act in contemplating registration of the birth mother as the mother. As Learned Hand J. observed in Cabell v. Markham (1945) 148 F.2d 737 it is necessary to “remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning” (p. 739). Here, the purpose of the 2004 Act (and indeed the 1880 Act) is plain. It is to establish and maintain a system of registration. That registration in this case is of the fact of birth. The Act operates by reference to the date of birth and requires compliance within a fixed period thereafter. While a birth certificate has subsequent importance as evidence, its original and basic function is demographic. The 1880 Act was part of the Victorian age’s admirable urge for organisation, cataloguing, counting and defining and by that process providing an essential substratum of information for the understanding and governance of society. The 2004 Act follows the same structure and performs the same function. From the function it was intended to fulfil and the circumstances in which it operated, it seems clear that under the Act, the person to be registered on the birth certificate as mother under both the 1880 Act and the 2004 Act is unsurprisingly, the person giving birth. Science may have undermined or at least qualified the assumptions upon which the Act was based, but that does not alter the interpretation of the Act.
33. However, it was argued by counsel for the applicant that the Status of Children Act 1987 had in effect changed the law so that the indicium of parenthood, whether by paternity or maternity, was the existence of a blood relationship, originally only capable of disproof by blood testing, but now capable of positive proof though DNA testing. While at the time of passage of the 1987 Act there may have been no consideration of the possibility that the person providing the ovum and the DNA might not be the person giving birth, the fact was that by permitting such blood testing in accordance with the then state of the art scientific knowledge, the 1987 Act shifted the indicium of maternity from birth, to blood/DNA testing. In 1987 that might only have been a more definite way to identify the person who gave birth in for example, the case of mistakes made in hospitals, but it had the effect that when science permitted a child to be born where the ovum was provided by one person and the birth by another, the 1987 Act meant that maternity was determined by testing and therefore the person who provided the ovum/DNA was, by that process, the person to be registered as mother.
34. I regret that I cannot accept this ingenious argument. The developments in the United Kingdom legislation are in my view too ambiguous and elusive to assist in establishing unmistakably the meaning of separate Irish legislation. No authority was cited for the meaning of the UK Act before or after the Human Fertilisation and Embryology Act 1990. It is in general, dangerous to seek to interpret the provisions of an Act by reference to a subsequent amendment without knowing whether that amendment was intended to alter or clarify or simply remove doubt. It is obviously even more difficult to use this process to interpret legislation in another jurisdiction. If the interpretation of the 1880 Act and the 2004 Act as set out above is correct, then by that legislation the “mother” required to register the birth, and be registered as “mother”, is the person giving birth. If so, then the 1987 Act did not purport to change that understanding or meaning. The 1987 Act was instead itself based on the assumption that blood testing could establish at least negatively, parenthood, which in the case of a woman at the time of passage of the 1987 Act, meant the woman who gave birth. The assumption that blood testing would even negatively prove birth in all cases may have been falsified by the developments in the science of reproduction, but the 1987 Act did not alter the identity of the person to be registered. That was and remained, the person giving birth.
35. I found the submissions by the amici curiae in this case helpful and insightful. It is necessary to consider one argument advanced on equality grounds in the course of this appeal. This was based largely on the judgment of O’Hanlon J. in S. v. S. in which it was held that the irrebuttable presumption of fatherhood contained in the rule against giving evidence which would have the effect of rendering a child illegitimate (as the law at the time stood), was repugnant to the Constitution, and accordingly had not survived the coming into force of the Constitution. It was argued therefore that any irrebuttable presumption of motherhood (or perhaps even statutory provisions which permitted the registration of the birth mother only) were also unconstitutional, and indeed created an inequality based on gender.
36. The argument made had some superficial attraction. In my view however, it is misplaced for a number of reasons. Any equality argument involves the proposition that like should be treated alike. Any assertion of inequality involves identifying a comparator or class of comparators which it is asserted are the same (or alike), but which have been treated differently (or unalike). In each case it is necessary to focus very clearly on the context in which the comparison is made. It is important not simply that a person can be said to be similar or even the same in some respect, but they must be the same for the purposes in respect of which the comparison is made. A person aged 70 is the same as one aged 20 for the purposes of voting, but not of retirement.
37. On consideration, it seems clear that whatever the superficial similarities, there are significant differences between the situation here and that which was dealt with by O’Hanlon J. First, he was considering a common law rule of evidence rather than the interpretation of a statute. Second, the case did not involve, at least directly, registration of birth but rather ongoing practicalities of parenting/inheritance. But perhaps the most significant difference arises from the different gender roles in reproduction and which consequently, have particular consequences given the advances in science already discussed. In nearly all areas of human activity which come before the courts there is no relevant distinction between male and female. However, the fundamental distinctions between men and women are rooted in the reproductive function. The male/paternal role in reproduction is a limited but, at least as matters stand, indivisible one. The only impact of science upon this role has been that methods of testing now allow paternity to be proved almost as a matter of certainty rather than something which could be uncertain. It is obvious however that the female role in reproduction goes far beyond the provision of an ovum containing DNA. Again as the science currently stands it also involves implantation of the fertilised ovum, gestation and, ultimately, birth. Critically for present purposes, the advance of science now means that that function is not necessarily carried out by the same person. Once DNA testing became available, it became possible to identify the one and only one person who was the father. Positive identification of the father also rules out any other male person as involved in the reproductive process. It was obviously unfair to insist that in every case a husband was to be treated as the father even when that could be disproved. By contrast, the female role in reproduction is not only different and more complex, it is also now divisible. DNA testing does not permit, any more, the identification of the single female person involved in the reproductive process from conception to birth, and the exclusion of any other person. For the purposes of registration, a choice must be made between two persons who each fulfil part of the function traditionally performed by a mother. It is not self-evidently contrary to any constitutional scheme to require the registration of the birth mother as mother, at least initially, especially when to do so maintains consistency with all other births, and indeed other birth registration systems.
38. It should be apparent however that this conclusion is dependent upon the essentially narrow focus of this case. It is in my judgment permissible to have a birth registration system registering the birth mother, initially. That is what the 2004 Act does. But that only illustrates the fact that serious constitutional issues must necessarily arise if that position is maintained for all time and for all purposes. From a human point of view it is completely wrong that a system, having failed to regulate in any way the process of assisted reproduction, and which accordingly permits children to be born, nevertheless fails to provide any system which acknowledges the existence of a genetic mother not merely for the purpose of registration, but also in the realities of life including not just important financial issues such as inheritance and taxation, but also the many important details of family and personal life which the Constitution recognises as vital to the human person. Very different issues would arise in such circumstances. In my view however, on the narrow question of registration on birth raised in this case, the first named respondent is correct that the 2004 Act on true construction requires the registration of the birth mother and in doing so is not unconstitutional. I wish to make it as clear as is possible that this decision is limited to the question of immediate registration of birth: it should not be taken as deciding anything more.
Judgment of Mr. Justice Clarke delivered the 7th November, 2014.
1. Introduction
1.1 What is motherhood? Who is a mother? These are questions to which it might be thought there were uncontroversial answers. Such issues could be debated at a scientific, ethical or philosophical level. However, these proceedings are not, or at least not mainly, about how the term mother might be considered in those or other disciplines. These proceedings are about the current legal definition of motherhood and the current legal identity of the person or persons who might properly be regarded as a mother.
1.2 The underlying facts are neither disputed nor, in any legal sense, controversial. The children named in the title to these proceedings are twins ("the twins"). There is no doubt but that the third named applicant/respondent is the genetic father of the twins and that the fourth named applicant/respondent is their genetic mother (respectively "the genetic father" and "the genetic mother", collectively, "the genetic parents" and together with the twins collectively "the R family"). The genetic mother suffered from a medical condition which, while permitting her to produce ova, meant that she was unable to carry and give birth to a child. The notice party ("the birth mother") is the sister of the genetic mother. The genetic parents came to an agreement with the birth mother that, utilising modern scientific methods, an embryo or embryos would be produced by the fertilisation of ova taken from the genetic mother by spermatozoa taken from the genetic father. It was agreed that such embryo(s) would be implanted in the birth mother who would then carry what would turn out to be the twins to the point of their being born. In those circumstances both of the genetic parents and the birth mother are all agreed that the genetic mother should be regarded as the mother of the twins in law.
1.3 However, the first named appellant/respondent ("an tArd Chláraitheoir"), based on legal advice, took a different view. On the basis of that advice an tArd Chláraitheoir considered that the only person entitled to be registered as the mother of the twins, in the agreed circumstances to which I have just referred, was the birth mother. It was on that basis that these proceedings were launched in which it is asserted that the genetic mother is entitled to be registered as the mother of the twins. For reasons which it will be necessary to address in some detail, the proceedings were successful before the High Court (Abbott J.) who gave judgment on the 5th March, 2013 (M.R & Anor v An tArd Chláraitheoir & Ors [2013] IEHC 91).
1.4 An tArd Chláraitheoir and the other state respondents/appellants (collectively “the State”) have appealed to this Court against that finding. It should also be recorded that, with the permission of the Court, the Equality Authority and the Human Rights Commission (collectively "the amici") were permitted, as amici curiae, to file written argument and make oral submissions at the hearing of the appeal. While it would, I think, be fair to say that the position adopted by the amici was not identical to that urged by both the genetic parents and the birth mother and likewise was not identical to the position determined on by the trial judge in the High Court, nonetheless the position of the amici was broadly supportive of the rights asserted by the genetic parents and the birth mother.
1.5 This appeal raises difficult but extremely important questions. But it is, I think, of equal importance that there be clarity about the role of this Court and equal clarity not just about what issues this Court has to decide but also about what questions are outside the scope of this Court's role. For that reason it seems to me to be important to start with some general observations about the scope of this appeal.
2. General Observations on the scope of the Appeal
2.1 As noted earlier this case is about how the law currently defines a mother for the purposes of the registration of a child. In that context it will be necessary to say something about the legislation which governs the registration of births in due course. It will also be necessary to say something about the legislation which enables the Court to declare persons to be the parents of a child. There can be little doubt but that a proper analysis of that legislation forms an important part of the consideration which this Court has to give to the issues which arise on this appeal.
2.2 It is also important to record the fairly obvious fact that there have been very significant advances in reproductive science over the last number of decades. It will again be necessary to touch on some of those advances in the course of this judgment. It is important, however, to be clear that the issues with which this Court is concerned are not, at least directly, ones of science. It is important that the respective roles of law and science in controversies such as this are both well understood and clearly defined. Law is to be found in the Constitution and in those other sources of law which the Constitution recognises. Given that both the Constitution of the Irish Free State (Article 73) and Bunreacht na hÉireann (Article 50.1) recognise the continuance in force (subject to consistency with the provisions of the respective constitutions) of the law as it existed immediately prior to their respective adoption, the common law forms part of the constitutionally recognised law of Ireland. The common law is based on historical precedent with due recognition of the binding nature of the decisions of higher courts. The common law has, of course, inherent within it, its own capacity to evolve to meet changing circumstances and to apply established principles to new conditions. Were it not for this inherent capacity, the common law would have remained frozen (either generally or at least in this jurisdiction under our constitutional regime) and it is difficult to see how landmark cases such as Donoghue v. Stephenson [1932] AC 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] AC 465, and Central London Property Trust Ltd. v. High Trees House Ltd. [1947] K.B. 130, could have been determined the way they were and, indeed, accepted as informing the common law in this jurisdiction. At a minimum those, and other similarly important, cases can be said to have restated in altered terms or even redefined those aspects of the common law with which they were concerned.
2.3 However, the sole and exclusive power to make legislation under the Constitution is conferred on the Oireachtas (Article 15.2.1). In that context, there are limits to the extent to which it is constitutionally appropriate for the courts to engage in a reinterpretation of the common law where such interpretation might cross the line into legislation and, thus, infringe the constitutionally protected role of the Oireachtas. The application of underlying existing common law principles to new circumstances is one thing. The development of substantially new principles or policies is another.
2.4 Thus, the way in which law can change is by means either of a legitimate and permissible evolution of existing common law principles to meet new circumstances and conditions as part of the inherent evolution of the common law, by express legislation, or by means of constitutionally mandated changes resulting from the role of the courts as interpreters of the Constitution. In the latter context the law may change either because statute law is found to be unconstitutional, common law rules are likewise found to infringe the Constitution, or it is necessary to otherwise ensure that constitutional rights are protected and vindicated.
2.5 However, it is clear that the role of the courts in that process, while important, is limited. Short of the existing law being found to be in breach of the Constitution, the only proper role of the courts is to play their appropriate part in the evolution of the common law in its application to new conditions and circumstances or to interpret legislation. Even where it is clear that the existing law is no longer fit for purpose it may well be that the only solution lies in legislation. This will particularly be so where any solution to identified problems requires significant policy choices and detailed provisions beyond the scope of the legitimate role of the courts.
2.6 Where science fits into such a picture may very well depend on the circumstances of the case. Just because scientific advances have rendered existing law obsolete does not mean that the courts can provide a ready solution. There may, of course, as earlier noted, be circumstances where the courts are required, in the ordinary way in the exercise of the proper role of the courts in the evolution of the common law, to develop common law principles to meet new scientific circumstances. Contract law, which developed in the age of the mounted courier and the telegraph has had to adapt, largely without legislative assistance, to the electronic era. Traditional concepts in the criminal law have had to be applied in very different circumstances to those in which they originally evolved. The application of long established law to an era of social media is often a vexed question. There is, therefore, scope for permitting the proper evolution of the common law to meet new scientific circumstances. But in many cases a law (whether the common law or statute law) which is outdated, no longer fit for purpose and at odds with the developments in science, can only properly be changed by legislation. In such circumstances all the courts can do is to exercise their proper role. It seems to me that that role is, potentially, threefold:-
(a) The courts can ascertain whether it is both appropriate and permissible to allow for the evolution of common law principles to meet the sort of new circumstances and conditions which have been brought about by advances in science;
(b) The courts may have to consider whether, in the light of the current state of scientific knowledge, any breach of constitutional rights has been demonstrated such as would warrant the intervention of the courts; but
(c) In the absence of either of the above being appropriate, the courts can only take such measures as may be within the courts proper constitutional role to attempt to bring about a necessary change in legislation.
2.7 It is of particular importance to emphasise at this stage that this case is about the law as it now is and not about the law as it should be. In order to consider what the law now is, it is, of course, necessary to review what the common law traditionally said. Next, an assessment must be made as to whether that law needs to be reconsidered (within the scope of the proper role of the courts) by reason of modern conditions. If necessary, consideration may have to be given to whether any constitutional rights are involved and, of course, to the proper application and interpretation of any statute law governing or affecting the situation. However, if, as a result of the proper consideration of all of those sources of law, the situation remains unsatisfactory then the only solution is legislation. To the extent that it might be said, in such circumstances, that the law has failed to keep up with science, then this is a failing of the legislature rather than of the courts. For the reasons which I have sought to address the courts have an important but ultimately limited role in the evolution of the law under our constitutional regime. If law becomes outdated by reference to modern scientific developments there may be, therefore, only limited means available to the courts to remedy that situation. The principal remedy may well lie in the hands of the Oireachtas.
2.8 It might also be said that the law cannot, and does not, adopt an approach which flies in the face of common sense. On a superficial basis it might be said that everyone knows what a mother is. Why then, it might be asked, can there be any doubt about what the term "mother" means in law. However, a commonly accepted and common sense understanding of what a word may mean may come to be challenged by, amongst other things, scientific change. Leaving aside altogether meanings of "mother" or "motherhood" which are concerned with changes in legal status brought about by fostering, informal adoption or, most importantly, legal adoption, it may well have been the case that no reasonable person would have entertained any doubt about what the word "mother" meant until relatively recent times. It is true that the word "mother" might well have been applied, with an appropriate prefix, to a foster mother or an adoptive mother. However, everyone would have understood that the person concerned had only acquired their status by reason of the events giving rise to their having charge over the child concerned. The term "natural mother" would always have been understood to have a different meaning.
2.9 But would the proverbial man or woman, or indeed child, in the street now have a common understanding of precisely what the term "mother" means in the light of the scientific developments which are at the heart of the issues which arise in this case? It might be said that every child knows what "mother" means. But if the child was old enough to understand the basics of science and was told that one person had provided half (that coming from the female side) of their genetic make up (so that they shared inheritable physical characteristics) while a different person had carried them and given physical birth, would the same child necessarily say that the answer to the question as to who their mother was was obvious? I very much doubt it. Scientific advances whether in understanding or technique can lead to all of us interpreting basic and common terms in a different way.
2.10 But whether such a change affects the legal position (in the absence of legislation) depends on a proper analysis of the law as it stood prior to the scientific change which gives rise to the issue of difficulty. The law often, in very many differing areas, deems things to be so, even though they may not be so. For the purposes of bringing certainty the law may define a particular word as having a very specific meaning for a specific purpose. This may be so even though the common usage of the term may be different or wider or, indeed, narrower. Likewise, there may be good reason for a term being defined in a particular way (for example, to prevent abuse or confusion) even though the definition may not correspond with ordinary usage. It is, of course, the case that language used in all legally binding measures, whether statutory or otherwise, will ordinarily be given its normal meaning. But where a term is defined it will be taken to mean what the definition says even if that is at variance with the commonly accepted usage of the term concerned.
2.11 In that context, of course, it may be possible that a definition of a term becomes outdated. The purpose for which the definition was adopted in the first place may cease to be fulfilled. There may well, in such cases, be an important and urgent need to amend the definition. But unless and until such an amendment is put in place the word remains defined as it is for all the adverse consequences which may flow.
2.12 It seems to me that all of these very general questions arise in a consideration of the difficult issues with which this Court is faced. For all of human (and indeed, one might say, mammalian, history) there was no distinction between what one might call a genetic mother and a birth mother for, as a matter of science, both were necessarily the same person. It would have been not only unnecessary but completely redundant to have two different terms to describe a female who provided part of the genetic material to a child and a female who physically carried and gave birth to that child.
2.13 However, that situation no longer necessarily applies. It will be necessary to turn shortly to what the common law had to say about the meaning of the term "mother" and how that term is used in a number of relevant legislative provisions. But that common law developed long before there was any potential for a distinction between a genetic mother and a birth mother. Likewise, much of the relevant legislation predates the significant recent advancements in reproductive science which lie at the heart of this case.
2.14 The real issues which, in my view, have to be addressed concern the following:-
(a) What was the common law meaning of the term "mother"?
(b) Given that, as will be clear from the relevant legislation to which reference will be made in due course, the term "mother" is not defined, how should the term "mother", as used in that legislation, be interpreted? In particular, can it be said that the provisions of any such legislation have altered the common law meaning of the term "mother"?
(c) To what extent, if any, can it be said that the meaning of the term "mother", whether as used by the common law or as used in any of the relevant legislation, must be required to be interpreted in the light of the scientific fact that there can now be a distinction between a genetic mother and a birth mother?
(d) To what extent, if any, can it be said that the Constitution impacts on any of those question and, if so, in what way?
2.15 In addition, one set of broad considerations needs at least to be considered for the purposes of analysing whether it has any effect on the answers to those questions. The various parties to this appeal went to some length to point out the practical difficulties and real potential for human misery which would flow from the interpretation of "mother" as urged by the other side. Counsel for the genetic parents and the twins urged that the proper meaning of mother was genetic mother. If that be so, countered counsel for the State, what would the situation be in respect of those many women who have had an embryo implanted in them which derived from an ova which was not their own (whether fertilised by a partner or an unknown person)? Does it mean, counsel rhetorically asked, that a child to which such a woman gives birth is not regarded as the child of that woman - that the woman is not the child's mother? What then of the status of that child to whom the woman may give birth but who will not be regarded as her child in law? What of the child's citizenship? What of the many legal rights which a child has in respect of their parent for support, inheritance and under many other headings?
2.16 On the other side, counsel for the State urged that the meaning of "mother" at common law, and now, means birth mother and that there was nothing in any relevant legislation which has changed that fact. On counsel's argument, the legal definition of "mother" was birth mother unless, and until, legislation was introduced to change that situation, although counsel did draw to the Court's attention the fact that there was proposed legislation in precisely that regard under consideration. However, counsel for the genetic parents and the twins countered by pointing to the consequences for persons in a position such as his clients. The same sort of consequences as to identity, citizenship, inheritance and support will apply.
2.17 The practical difficulties identified by counsel on both sides, as potentially stemming from the acceptance by this Court of the other side's argument, all stem from the status of a child by reference to its mother. I use the term "status" in that context to mean legal status rather than social standing or the like. While legal status is not everything, it is important. The law cannot make parents love their children or vice versa. The law cannot alter the feelings which persons may have towards those with whom they share a close familial relationship irrespective of the presence or absence of a formal legal status to that relationship. However, many important legal rights and obligations are dependent in whole or in part on the legal status which a person has. Constitutional rights attaching to the family may be affected. As noted by both counsel, citizenship, support and inheritance rights can be altered. The obligations of adults towards children may be defined or significantly influenced. The status which the law confers, in terms of familial relationship, is, therefore, of significant importance not only in itself but also in the way in which it affects many other rights and obligations. As these proceedings demonstrate, people understandably feel strongly about the status which the law confers on them (or, as in this case, does not). But people also feel strongly about other issues of connection. The often documented search which adults (whether formally adopted or otherwise) make over long periods of time to identify their true origins is testament to that fact as well. There are, therefore, serious issues and arguments which turn on the proper status which the Court attributes in law to individuals.
2.18 To those arguments can be added others. What is to happen in complicated situations, unlike the present case, where there may be a dispute between the genetic parents and the birth mother? To what extent can parties be said to be bound by agreements reached in relation to such matters? To what extent can the Court countenance arrangements which might be regarded as exploitative? The potential list of difficulties is almost endless. That it is beyond the powers of the courts to establish a detailed regime which deals with all of those problems in a respectful and considerate way is, in my view, far beyond doubt. These circumstances cry out for legislation. As long ago as Roche v Roche [2010] 2 IR 321, this Court made clear that the absence of modern legislation had the potential to create the very kind of difficulties which have now emerged and which are bound, in many cases, whatever the result of these proceedings, to give rise to much human misery, great legal doubt and no advantage to society as a whole. It is to be regretted that the warning words of this Court, concerning the need for urgent legislation, were not heeded in a more timely fashion, although the prospect that legislation may now be about to be brought forward is to be welcomed. I make this latter point without, of course, in any way commenting on the merits of the specific measures contained in the proposed legislation to which the Court's attention was drawn by counsel for the State and also noting that, since the hearing, the relevant provisions have also, at least temporarily, been removed from the proposed legislation.
2.19 But the position does not end there. Science does not stand still. In this area, indeed, science appears to be advancing at a pace. It is not unreasonable to anticipate that it may be scientifically possible in the relatively near future that a new human being may come into existence without going through the process of birth at all (in any sense of the term "birth" as it would have been traditionally understood). Likewise, it is already the case that it is possible to engineer the genetic material which goes to make up a developing embryo by the introduction of material taken from neither the principal male and female genetic parents. The time may well come when it is at least scientifically possible to clone an individual so that the person concerned could not be said to have a genetic father or a genetic mother in any traditional sense of those terms. The extent to which it may be considered desirable to regulate or even prohibit practises in this area is another matter altogether.
2.20 However, it seems to me that counsel for the amici drew the Court's attention to a very important distinction. Legislative regulation in this area has to deal with two very distinct questions which counsel helpfully termed the "ex ante" and "ex post" situations. The former, or “ex ante”, issues concern the proper regulation of the circumstances in which modern scientific techniques, such as those which arise in this case and such as those which may arise in the future (only some of which I have touched on), are to be controlled or, perhaps, in some circumstances, outlawed. The "ex post" provisions will be needed to deal with the treatment and status of human beings who come into being as a result of such measures.
2.21 Indeed, it seems to me that one of the most difficult questions which any legislation will need to address is the interaction between those two types of measures. Whatever form of regulation is considered appropriate to prevent abuse, exploitation or other practises which may be considered to be undesirable, there is always the risk that a child will come into existence in circumstances which are a breach of those regulations. Such a situation will not be the child's fault. The law will have to deal with that child as that child is. Any legislation needs not only to deal with the proper regulation of practise and methodology in this area but also the proper recognition of the status of children who result from advances in modern science. In the context of new advances in science the law will have to deal with the problem of what to do in circumstances where, in breach of whatever regulation may be put in place, a new human being has come into the world. That is not an easy legislative task but one thing is clear - the courts cannot make up the sort of detailed rules that are necessary to ensure a humane, workable and coherent system. Even if it were constitutionally permissible for the courts to attempt such a task (which it most clearly is not) same could only be done on a case by case basis as issues arise. The uncertainty that would prevail until the case law had settled down (if it ever truly could given that it would be dealing with a constantly evolving scientific frontier) would lead to its own substantial cost in human misery (not least those of children) and the high likelihood of unnecessary disputes, in a whole range of areas from succession to citizenship, which would likely be hugely costly both in human and monetary terms.
2.22 I have drawn attention to these factors simply to emphasise that I do not believe that the courts are in any way unaware of the need to bring certainty to these areas but also to emphasise that the courts are, on any view, not best placed to achieve that end.
2.23 But there has not been legislation, despite this Court drawing attention to the emerging problems in Roche. This Court must, therefore, do the best it can. It must determine the proper meaning of the term "mother" for the purposes of registration in the context of the existing law, having regard both to the common law, the relevant legislation, and, to the extent that it may be relevant, the Constitution. That the answer to that question is almost certainly going to be highly unsatisfactory cannot be doubted. But the only truly satisfactory solution can be achieved by legislation. Having identified those issues, I think it is appropriate to start by considering the way in which the trial judge addressed them.
3. The Findings of the Trial Judge
3.1 In order to fully understand the issues with which Abbott J. was confronted, it is necessary to briefly introduce the principal argument relied on, on behalf of the State, both before the High Court and this Court. The Latin maxim mater semper certa est (the mother is always certain) ("mater semper") is suggested by the State to represent the traditional position at common law. On that basis, the State argued that the historical legal position was that the person giving birth to a child was treated, as a matter of law or definition, to be the child's mother. There were, obviously, issues between the parties in the High Court as to whether the maxim truly represented the common law position in Ireland or, indeed, if it did, what precisely it meant. In addition, there were questions as to whether, even if the maxim as interpreted in the manner contended for by the State represented the common law position, that position had been altered either by legislation or by virtue of the requirements of the Constitution. That broad overall picture represents the backdrop against which the judgment of Abbott J. needs to be viewed.
3.2 The earlier part of the judgment is concerned with setting out the issues, the evidence and the submissions of the parties. Abbott J.’s conclusions can be found from para. 95 of his judgment, onwards. However, the trial judge began by addressing the argument which came under the broad heading of epigenetics. Up until recent times it had been widely thought that the influence of chromosomal DNA was the sole influence on the identity and development of a foetus. Epigenetics suggests that other factors, such the transfer of microchimeric cells from mother to baby and drug abuse during pregnancy, can also influence the genetic make-up of a child. However, having considered the evidence adduced on this issue, Abbott J. was satisfied that “the influence of such epigenetic occurrences is not of such significance as to alter the overriding significance of chromosomal DNA for the purpose of determining identity and inherited characteristics leading to a conclusion of the paternity and genetic maternity” and that “it is most unlikely that epigenetics will ever trump the deterministic quality of chromosomal DNA.” No appeal has been brought against that finding.
3.3 Abbott J. addressed the status of the maxim mater semper between paras. 100 and 106. It was suggested that the maxim, in expressing a historically incontrovertible truth, became an irrebuttable presumption of law and of fact. The trial judge later noted that mater semper was not positively affirmed in any legislative context. The international position of the maxim was also briefly averted to. In addition, Abbott J. suggested that, in the absence of a legislative intervention outlawing such arrangements, a surrogacy agreement could not be deemed illegal nor give rise to any criminal or civil wrong.
3.4 Abbott J. then rejected the argument put forward by counsel for the State to the effect that the introduction of Article 40.3.3. into Bunreacht na hÉireann provided constitutional recognition of what was argued to be the pre-existing situation, insofar as that Article uses the term “mother” by reference to the person who carries a child during pregnancy. Referring to the decision of this Court in Roche, (particularly the judgments of Fennelly and Geoghegan JJ), the trial judge concluded that the word mother in Article 40.3.3 had a meaning specific to that Article itself, and that any meaning attributable to the term "mother" in that article was temporally limited to the period which a foetus spends in the womb.
3.5 Abbott J. expressed the view that the concept of “blood relationships or links” was paramount in deciding parenthood and found support for this view in the judgments of Fennelly J. in N v. Health Service Executive [2006] 4 IR 374 and J.McD. v P.L [2010] 2 IR 199. In the context of paternity, it was observed that such a link could be definitively proved by a blood test under the Status of Children Act 1987 ("the 1987 Act"). Abbott J. equated such “blood relationships or links” with the genetic material inherited by a child from its genetic parents, and that, therefore, the inquiry as to maternity ought also to be made on a genetic basis. At para. 103, he held:
“In view of my findings in relation to the determinative nature of chromosomal DNA, I find that while the input of a gestational mother to an embryo and foetus not containing genetic material from her is to be respected and treated with the care and prudence which the best medical practice dictates, the predominant determinism of the genetic material in the cells of the foetus permits a fair comparison with the law and standards for the determination of paternity.
In his view, to do otherwise, and treat the determination of maternity and paternity differently, would be “invidious, irrational and unfair”. This conclusion was said to be supported by the provisions of the Adoption Act 2010 ("the 2010 Act") in relation to the counselling afforded to a mother proposing the adoption of her child as to the importance of knowing the child’s genetic makeup.
3.6 Abbott J. then turned to the constitutionality of the maxim’s application as an irrebuttable presumption. Having cited the judgment of O’Hanlon J. in S. v. S. [1983] 1 I.R. 68, which dealt with an irrebuttable presumption of paternity within marriage, Abbott J. concluded that “the presumption of mater semper certa did not survive the enactment of the Constitution insofar as it applies to the situation post IVF”. Although this did not raise a consideration of the best interests of the child, it was observed that this would “in most cases, if not in all, … be best served by an inquiry of the genetic interest.”
3.7 In summary, therefore, Abbott J. accepted that the maxim mater semper did form part of the common law in Ireland and was to be interpreted as meaning that a woman giving birth to a child was irrebuttably presumed to be its mother. However, that legal position at common law did not, in Abbott J.'s view, survive the adoption of the Constitution so that the maxim, constitutionally construed, must now be taken merely to give rise to a rebuttable presumption.
3.8 Abbott J., therefore, ordered that the genetic mother was the mother of the twins and that she had an entitlement to have particulars of her maternity entered on the certificates of birth of the two children. The trial judge also ordered that the twins had a corresponding right to have their genetic mother recorded on their birth certificates as their mother.
3.9 Against that background, it is next appropriate to turn to the position adopted by the parties on this appeal.
4. The Position of the Parties
4.1 The State argued on this appeal that the trial judge erred in a number of his conclusions. In particular, it was said that Abbott J. was incorrect in his findings on the “determinative nature of chromosomal DNA” in relation to parenthood for the purposes of the law, and his finding that the maxim mater semper did not survive the enactment of the Constitution.
4.2 It was said by the State that the trial judge erred in characterising the maxim as an irrebuttable presumption of law. Thus, in applying the judgment of O’Hanlon J. in S. v S., to the facts of this case, Abbott J. was said to have erred. Rather, the State argued that the maxim is an established legal fact, which has been recognised in the common law, enshrined in the Constitution and reflected in case-law.
4.3 In support of the common law argument, counsel referred to the decision of the House of Lords in The Ampthill Peerage [1977] A.C. 547, and the comments of Walsh J. in O’B. v S. [1984] I.R. 316. It was further said that the legal status of the maxim in Ireland was recognised by the European Court of Human Rights in Johnston v. Ireland [1987] 9 EHRR 203.
4.4 The State contended that reference to “mother” in Article 40.3.3 of the Constitution can only be referable to the birth mother and, by virtue of the doctrine of harmonious interpretation, that definition should be read into the Constitution as a whole. Such a construction, it was said, supports the constitutional status of the maxim. The decisions of this Court in Roche and Attorney General v. X [1992] 1 IR 1 were also said to equate the birth mother with legal motherhood.
4.5 The State further argued that the High Court judgment in effect removed the status of parenthood from a birth mother immediately following birth and, in so doing, failed to give recognition to the constitutionally recognised natural link between a child and its birth mother and the vital role played by a woman in giving birth to a child. In this regard, the State cited the various judgments delivered by this Court in G v. An Bórd Uchtála [1980] I.R. 32.
4.6 In equating blood link with genetic link, the State submitted the trial judge fell into error. It was said that this conclusion failed to adequately take into account the differences between men and women and their respective roles in reproduction. The State contended that the judgment of Fennelly J. in J.McD. v. P.L. [2010] 2 IR 199, being a case concerning the rights of a sperm donor, does not support the conclusion that blood relationships are paramount in deciding both maternity and paternity. Similarly, it was argued that this Court, in N v. HSE [2006] 4 IR 374, did not have in mind the possibility of there being both a gestational and genetic mother and, thus, it was said that the comments in the judgment in that case cannot be seen as being determinative on the applicability of a blood link or genetic test.
4.7 On the 1987 Act, counsel for the State submitted that the same was not drafted with the intent or knowledge that it would be used to resolve disputes in a surrogacy scenario. It was said that it would, therefore, be wrong for this Court to attempt to apply its provisions in determination of the issues in this case which, of course, are solely concerned with the identity in law of a mother. Rather, the State argued that the intent of the 1987 Act, insofar as it relates to declarations of maternity, was to identify the mother in situations such as a fraudulent claim of maternity or a mix-up of new born babies in a maternity ward. It was argued that any fundamental change in the law, such as that contended for by the genetic parents, would have to have been clearly signalled in the 1987 Act. It was argued that no such clear wording is to be found in the legislation. In addition, counsel pointed to the Civil Registration Act, 2004 ("the 2004 Act"), which, although not defining the term “mother”, uses the term, it was said, in the sole context of a birth mother and, thus, is a recognition and an application of the maxim mater semper.
4.8 The State also drew attention to the many policy issues which arise in relation to surrogacy arrangements. As has already been noted these include the desirability, or otherwise, of surrogacy arrangements being governed solely by private agreement between the respective parties, the risk of the commodification of both women and children, and the possibility of a legal vacuum being created if the maxim is held to be no longer applicable. The State, therefore, argued that there is a risk of the Court usurping the role of the Oireachtas in this regard and that the Court should adopt a deferential approach and wait for legislation to regulate this issue.
4.9 Finally, the State contended that any prejudice suffered by the application of the maxim to the genetic parents in this case could be remedied by an application to adopt the twins. Both the State and the R family expressly rejected the notion that two women can simultaneously be regarded as the legal mother of a child.
4.10 The fundamental position adopted by the R family was that the provisions of the 1987 Act govern this dispute. Counsel for the R family argued that the maxim mater semper was never recognised in Irish law and that there is no binding recognition of the maxim in this jurisdiction. In the alternative, it was argued that the effect of the 1987 Act, in updating the law as to declarations of parentage, was to introduce genetic testing as the accepted method of determining parenthood, whether that be paternity or maternity. This was said to be so because parentage of a child is, under that Act, to be determined by the presence or absence of inheritable characteristics. In so doing, it is said that the 1987 Act overruled the maxim insofar as it still might have applied until that point in time. Although counsel accepted that this scenario may not have been forefront in the minds of the drafters of the 1987 Act, he argued that such is the effect of the relevant provisions, and that, in the absence of some unconstitutionality or other legislation directly governing this area, the Court is constrained to apply the terms of the 1987 Act.
4.11 The R family argued that such an interpretation is consistent with the Constitution, and that a failure to so construe the provisions of the 1987 Act would constitute a failure to protect and vindicate their constitutional rights. In particular, it is said that, if the 1987 Act were not applicable, they would be deprived of the protections afforded to the constitutional family under Articles 41 and 42 of the Constitution.
4.12 The R family did not accept the submission that Article 40.3.3 provides an answer to the question of the constitutional meaning of motherhood for all purposes. In this regard, the provisions of the Adoption Act, 2010, which allow for a woman who gives birth to be no longer treated as that child’s mother, were noted. The R family supported the conclusions of Abbott J. to the effect that the temporal scope and effect of Article 40.3.3 is limited to the period the child is in the womb and referred to passages from the judgments of the members of this Court in Roche as authority for that proposition.
4.13 The R family contended further that both the existence and importance of the blood link between a child and his or her genetic parent has been recognised in many judgments of this Court. These were said to include J.K. v. V.W. and Others [1990] 2 I.R. 437 and N v. Health Service Executive. It was said that the judgment of Fennelly J. in J.McD. v P.L. makes it clear that the term “blood link” is properly understood as being the sharing of genetic material.
4.14 If the genetic parents were to fail in their basic claim, it was suggested as a fallback position that it was appropriate that they be appointed guardians of the twins, either pursuant to section 6A of the Guardianship of Infants Act, 1964, as amended, or pursuant to the inherent jurisdiction of the court. It was said that the Court has the inherent jurisdiction to do all things necessary to defend and vindicate the personal rights of a child and D.G. v. The Eastern Health Board [1997] 3 IR 511 was cited in support of this proposition.
4.15 At the hearing, the birth mother adopted the submissions of the R family. On the question of the maxim mater semper, the birth mother submitted that such a rule of law ought to continue to operate, but on the basis of it being a rebuttable presumption capable of being rebutted on a case by case basis. The birth mother argued that, in this case, the presumption should be rebutted in favour of the genetic mother.
4.16 The amici presented a joint oral submission at the hearing. However, both had lodged individual written submissions with each focusing on their respective areas of expertise, being respectively whether, and to what extent, the operation by an tArd Chláraitheoir of mater semper as an irrebuttable presumption or rule of law was compatible with relevant constitutional principles and requirements of equality in relation to the individuals involved and whether the rights of the individuals involved under Articles 40.3, 41 and 42 of the Constitution have been violated by operation of the maxim in the manner contended for by the State. Both amici argued that Article 40.3.3 does not require the recognition of a birth mother as constitutional mother in all circumstances and that, particularly in the circumstances of this case, it does not so require. It was also submitted that, while the agreement between the parties may not be legally enforceable, there is nothing illegal about the agreement in the absence of legislation prohibiting or regulating such an agreement. Both amici place significant reliance on various decisions of the European Court of Human Rights ("ECtHR").
4.17 The Equality Authority accepted that no indirect discrimination necessarily arose from the relevant legislative provisions, and that the 1987 Act was capable of recognizing the rights of the genetic mother in the circumstances of this case. Rather, it contended that it was the application of the maxim mater semper as an irrebuttable presumption by An tArd Chláraitheoir which gave rise to breaches of the equality guarantee contained in Article 40.1 of the Constitution. The Equality Authority submitted that Article 40.1 required that the maxim operate only as a rebuttable presumption. If not so operated, it was contended that there was unjustifiable discrimination on the grounds of gender equality - in treating genetic mothers and genetic fathers differently - disability equality - in treating the genetic mother with a reproductive disability differently from a genetic mother with no such disability - and children’s equality - in that the best interests of the children in this case are said not to be protected unlike the interests of children born through a non-surrogacy arrangement.
4.18 The Irish Human Rights Commission based their submission on the right to beget children as recognised by Costello J. in Murray v. Ireland [1985] I.R. 532. Counsel on their behalf submitted that, having failed to regulate in this area, it is not now open to the State or its organs to deny both the genetic parents and the twins the rights afforded to members of a constitutional family under Articles 41 and 42 of the Constitution. It was also said that the failure to recognize the primary care givers in this case, that is, the genetic parents, and the resultant divergence between the practical and legal realities, fails to protect the best interests of the twins as guaranteed by Article 40.3 of the Constitution.
4.19 Against the backdrop of those submissions it seems to me to be appropriate to turn first to the question of seeking to identify the historical position at common law in Ireland concerning the definition of who might be said, in law, to be a mother.
5. The Common Law in Ireland on Motherhood
5.1 The legal authority on the question of the definition of motherhood in the common law as it is understood in Ireland is, in my view, extremely limited. Attention was drawn on behalf of the State to the judgment of Walsh J. in O'B v. S, and, in particular, the highlighted part of the following sentence on p. 338:
“In so far as it deals with the question of the obligation to establish the relationship between the mother and the child which was necessary under Belgian law, that point does not arise in this jurisdiction as the maxim mater semper certa est did not apply in Belgian law but does apply in Irish law by reason of the provisions of ss. 1, 7 and 28 of the Births and Deaths Registration Act (Ireland), 1880.” (emphasis added)
5.2 First, it should be noted that Walsh J. does not appear, in the passage cited, to suggest that the maxim mater semper applied in Ireland by virtue of the common law, but rather suggests that it applies in Ireland by virtue of the relevant provisions of the Births and Deaths Registration Act (Ireland), 1880 (“the 1880 Act”). The sections of the 1880 Act cited by Walsh J. are as follows:-
"s.1 - In the case of every child born alive after, or whose birth has not been registered previous to the commencement of this Act, it shall be the duty of the father and mother of the child, and in default of the father and mother, of the occupier of the house in which to his knowledge the child is born, and of each person present at the birth, and of the person having charge of the child, to give to the registrar, within forty-two days next after such birth, information on the particulars required to be registered concerning such birth, and in the presence of the registrar to sign the register.
…
s.7 In the case of an illegitimate child no person shall, as father of such child, be required to give information under this Act concerning the birth of such child, and the registrar shall not enter in the register the name of any person as father of such child, unless at the joint request of the mother and of the person acknowledging himself to be the father of such child, and such person shall, in such case, sign the register, together with the mother.
…
s.28 An entry, or certified copy of an entry, of a birth or death in a register under the principal Act, or in a certified copy of such a register, shall not be evidence of such birth or death, unless such entry either purports to be signed by some person professing to be the informant, and to be such a person as is required by law at the date of such entry to give to the registrar information concerning such birth or death, or purports to be made upon a certificate from a coroner, or in pursuance of the provisions of this Act with respect to the registration of births and deaths at sea, or in pursuance of section six of this Act.
When more than three months have intervened between the day of the birth and the day of the registration of the birth of any child, the entry or certified copy of the entry made after the commencement of this Act of the birth of such child in a register under the principal Act, or in a certified copy of such register, shall not be evidence of such birth, unless such entry purports,-
(a) If it appear that not more than twelve months have so intervened, to contain a marginal note that a statutory declaration has been made by a properly qualified informant;
(b) If more than twelve months have so intervened, to have been made with the authority of the Registrar General, and in accordance with the prescribed rules.
Where more than twelve months have intervened between the day of a death or the finding of a dead body and the day of the registration of the death or finding of such body, the entry or certified copy of the entry made after the commencement of this Act of the death in a register under the principal Act, or in certified copy of such register, shall not be evidence of such death, unless such entry purports to have been made with the authority of the Registrar General, and in accordance with the prescribed rules."
5.3 It is clear, therefore, that s.1 simply imposes a duty on "the father and mother" of a child to give appropriate details and to sign the relevant register. Section 7 provides that in the case of persons then regarded as illegitimate, no father is to be registered except on the joint request of "the mother and of the person acknowledging himself to be the father" of the child concerned. Section 28 simply provides that entries in the register can be evidence provided the conditions specified in that section are met.
5.4 It may be possible to discern a distinction between the use of the term "mother" and the use of the term "the person acknowledging himself to be the father" in the case of an illegitimate child. No such qualification is applied to the father of a legitimate child but, of course, at that time, the husband was presumed to be the father of any legitimate child.
5.5 In any event, it seems to me that, on a full reading of the judgment of Walsh J. in that case, the real question with which that aspect of his judgment was concerned was to contrast the position which applied in Ireland to that which applied in Belgium. On the basis of the judgment, it would appear that Walsh J. was satisfied that, in Belgian law at that time, the relationship between an unmarried mother and her child was not established as a matter of law without proper registration. In contrast, the position in Ireland was that registration was not necessary in order for the status of a mother and her child to be established. This was and is because the law confers status without the necessity of registration. Registration is a matter of obligation and can provide evidence but is not a prerequisite to establishing status. To the extent, therefore, that the passage from the judgment of Walsh J., which I have cited, might be taken to be an indication that the maxim mater semper formed part of Irish law, it seems to me that the judgment is only of very limited authority in that regard.
5.6 Likewise, what is said to be the recognition by the ECtHR of the maxim as representing the law in Ireland which is to be found in Johnston v. Ireland, is no more than that court noting what was then said by the parties to the case to be the legal position in Ireland without any reference to supporting authority. At para. 25 of its judgment, the ECtHR observed:
“In Irish law, the principle mater semper certa est applies: the maternal affiliation of an illegitimate child, such as the third applicant, is established by the fact of birth, without any requirement of voluntary or judicial recognition.”
5.7 Academic commentary has questioned the extent to which it can properly be said that the maxim forms part of Irish law at all. For example, Dr. Maebh Harding in her chapter “Surrogacy in Ireland” in K. Trimmings and P. Beaumont, International Surrogacy Arrangements: Legal Regulation at the International Level, (2013, Hart Publications) argues that, in the absence of legislation expressly providing for a legal presumption in favour of a birth mother, the legal definition of “mother” in Irish law is unresolved. Although she concedes that the maxim formed part of Roman law, she contends that the principle does not exist in the common law tradition:
“While a presumption in favour of the gestational mother is present in Roman law, there is no such principle in the common law tradition. Common law texts set out principles of legitimacy which make reference only to the father.”
She refers to another academic paper (C. Baldassi, “Mater Est Quam Gestatio Demonstrat: A Cautionary Tale”, 27th June 2007) in support of this proposition. She also suggests that the comments of Walsh J. in O’B v S are obiter. In the alternative, she argues that, even if such a presumption is held to exist in favour of a birth mother, it could be rebutted by genetic evidence through the machinery of the Status of Children Act, 1987.
5.8 It follows that there is only sparse and limited authority for the proposition that the maxim mater semper ever formed part of the common law of Ireland. But it is, perhaps, equally if not more important to consider what the maxim, to the extent that it might be considered to have formed part of the law of Ireland, could be said to have meant. Some criticism was advanced on behalf of the State with the characterisation by the trial judge of the maxim as being an irrebuttable presumption of law rather than a definition or statement of legal fact. I am far from convinced that there is, in reality, any great difference between the two concepts. A rebuttable presumption is, of course, a different thing altogether. A rebuttable presumption merely defines a default position which is to apply unless and until somebody establishes, in the appropriate way, that the presumed matter is not in fact so. But if a presumption is stated to be irrebuttable, for whatever reason, then it amounts to a definition for all legal purposes. Indeed, it seems to me that the term definition as a matter of law is more appropriate than the term irrebuttable presumption for there is little of the "presumption" in a proposition which the law does not allow to be contested.
5.9 It seems to me, therefore, that the real question which needs to be addressed is as to whether the common law of Ireland defined the term "mother" as applying only to a woman who gave birth to a child. I am not satisfied that it did.
5.10 In that context, it is appropriate to consider two different possibilities. The first is that the law defined, as mother, the person who provided the female side of the genetic material that went to make up a child. While the state of scientific knowledge in respect of the precise manner in which characteristics were inherited changed over the centuries, the predominant view, at least since the earlier part of the 19th century, was that genetically inherited characteristics came from both father and mother and were, in some way, inherent in both parents (contrary to the theories espoused by those such as Lamark who suggested that acquired characteristics could be inherited). It is true that the precise mechanism by which characteristics were inherited did not become clear until the earlier work of Mendel became more widely known from the publication of separate research by de Vries, Correns and Von Tschermak in the spring of 1900. Prior to that most biologists considered that the traits of both parents were blended in some fashion. But the precise mechanism by which genetic inheritance took place was not really relevant to the overall question of whether characteristics were inherited from both parents. Such a view had ultimately prevailed over the alternative strand of thought, which suggested that inheritance was solely from the male with the female simply nurturing and carrying the offspring to birth. Against the background of an acceptance that any child inherited its characteristics from both male and female parent, how would a legal definition of a mother have worked? In any age prior to the recent past and prior to the recent developments in reproductive science which are at the heart of this case, a definition of a mother which equated motherhood with the provision of genetic material would have, as a matter of certainty, treated a person who could be shown to have given birth to a child as its mother. But that would have been so not because the person giving birth was, by legal definition, the mother, but rather because it was, in the light of the state of scientific advancement at that time, a matter of scientific certainty that the person who gave birth was also the person who gave the female genetic material to the child.
5.11 Thus, even if the proper definition of a mother as a matter of law were taken to have been the "genetic mother", a maxim of mater semper would have been equally applicable, for it would have been "certain" that the birth mother was the person who had provided the relevant genetic material. There is nothing, therefore, in my view, inconsistent with a legal rule which treated a genetic mother as being the mother with a maxim which recognised the scientific certainty that the birth mother was the person who was the genetic mother.
5.12 An acknowledgment that a person giving birth was certainly the mother is, therefore, equally consistent with the mother being defined as the birth mother or being defined as the genetic mother.
5.13 In the light of that analysis, I am not satisfied that the common law, in defining the identity of a mother, made any distinction between a birth mother and a genetic mother. The maxim mater semper was simply a recognition of the fact that, in the light of the state of science at that time, the birth mother and the genetic mother were necessarily one and the same person. It seems to me to be a significant over-interpretation of the maxim to suggest that it sought to define mother as birth mother as opposed to recognising that the genetic mother and birth mother were necessarily one and the same person and that the identity of both the birth mother and the genetic mother could, therefore, be definitively determined by identifying the person who gave birth. I am not, therefore, satisfied that the common law in Ireland defined mother in a way which confined that term to birth mother to the exclusion of genetic mother. I will return to the consequences of that conclusion in due course. However, as pointed out earlier, the next question which must logically be addressed is as to the effect, if any, of relevant legislation on the common law position. I, therefore, turn to that question.
6. The Legislation
6.1 Section 35 of the 1987 Act provides for declarations of parentage by a court in the following terms:-
“(1) (a) A person (other than an adopted person) born in the State, or
(b) any other person (other than an adopted person),
may apply to the Court in such manner as may be prescribed for a declaration under this section that a person named in the application is his father or mother, as the case may be, or that both the persons so named are his parents.
(2) An application may be made under subsection (1) of this section notwithstanding the fact that any person named in the application as the father or the mother or a parent, as the case may be, is not, or may not be, alive.
…
(8) Where on an application under this section it is proved on the balance of probabilities that—
(a) a person named in the application is the father, or
(b) a person so named is the mother, or
(c) persons so named are the parents,
of the applicant, the Court shall make the declaration accordingly.
(9) Any declaration made under this section shall be in a form to be prescribed and shall be binding on the parties to the proceedings and any persons claiming through a party to the proceedings, and where the Attorney General is made a party to the proceedings the declaration shall also be binding on the State.”
6.2 A court can direct that blood tests be taken to assist the court in its determination under s. 38(1) of the 1987 Act:
“(1) In any civil proceedings before a court in which the parentage of any person is in question, the court may, either of its own motion or on an application by any party to the proceedings, give a direction for the use of blood tests for the purpose of assisting the court to determine whether a person named in the application or a party to the proceedings, as the case may be, is or is not a parent of the person whose parentage is in question, and for the taking, within a period to be specified in the direction, of blood samples from the person whose parentage is so questioned, from any person alleged to be a parent of that person and from any other person who is a party to the proceedings, or from any of those persons.”
6.3 Blood tests are defined in s. 37 as “any test carried out under this Part and made with the object of ascertaining inheritable characteristics”.
6.4 Section 40(2) sets out the contents of a report resulting from a blood test under s. 38 as follows:-
“(2) The person under whose control blood samples are to be tested by virtue of subsection (1) of this section shall make to the court by which the direction was given a report in which he shall state—
(a) in relation to each person from whom blood samples were so taken, the results of the tests, and
(b) in relation to each person (other than the person whose parentage is in question) from whom blood samples were so taken—
(i) whether the person to whom the report relates is or is not excluded by the results from being a parent of the person whose parentage is in question, and
(ii) if the person to whom the report relates is not so excluded, the value, if any, of the results in determining whether that person is a parent of the person whose parentage is in question,
and the report shall be received by the court as evidence in the proceedings of the matters stated therein.”
6.5 Section 19 of the 2004 Act, as amended, deals with the obligation to register the birth of a child. This section, insofar as is relevant, provides:
“(1) Subject to the provisions of this Part, when a child is born in the State, it is the duty of—
(a) the parents or the surviving parent of the child, or
(b) if the parents are dead or incapable through ill health of complying with this subsection, each other qualified informant, unless he or she reasonably believes that another qualified informant has complied with it in relation to the birth, not later than 3 months from the date of the birth—
(i) to attend before any registrar,
(ii) there, to give to the registrar, to the best of his or her knowledge and belief, the required particulars of the birth, and
(iii) there, to sign the register in the presence of the registrar.
…
(3) Where, owing to non-compliance with subsection (1), a birth is not registered and, having made reasonable efforts to do so, the Superintendent Registrar in whose registration area the birth occurred is unable to contact either parent of the child concerned, the Superintendent Registrar may give a qualified informant a notice in writing requiring the informant—
(a) to attend before a registrar in that registration area, at the office of the registrar or such other (if any) convenient place as may be specified by the Superintendent Registrar on or before a day so specified (not being less than 7 days from the date of the notice nor more than 12 months from the date of the birth),
(b) there, to give to the registrar, to the best of his or her knowledge and belief, the required particulars of the birth, and
(c) there to sign the register in the presence of the registrar,
and, unless the birth is registered before the date of the attendance aforesaid, the informant shall comply with the requirement.
(4) Where paragraphs (i) to (iii) of subsection (1) or, as the case may be, paragraphs (a) to (c) of subsection (3) have been complied with in relation to a birth, the registrar concerned shall register the birth in such manner as an tArd-Chláraitheoir may direct.…”
6.6 The required particulars are set out in Part 1 of the First Schedule to the 2004 Act, as amended. In relation to the parents of a child, these particulars include:
“Forename(s), surname, birth surname, address and occupation of mother.
Former surname(s) (if any) of mother.
Date of birth of mother.
Civil status of mother.
Personal public service number of mother.
Birth surname of mother's mother.
Forename(s), surname, birth surname, address and occupation of father.
Former surname(s) (if any) of father.
Date of birth of father.
Civil status of father.
Personal public service number of father.
Birth surname of father's mother.”
6.7 Section 63 of the 2004 Act deals with the correction of errors in a registrar:
“(1) An alteration shall not be made in a register maintained under paragraph (a), (b) or (d) of section 13(1) otherwise than in accordance with the provisions of this Act.
(2) On the application in that behalf of a person having an interest in the matter to a Superintendent Registrar in writing, he or she may—
(a) correct in the manner specified by an tArd-Chláraitheoir a clerical error in any register maintained under section 13, or
(b) correct an error of fact in a register specified in the said paragraph (a) or (d) if the person gives to the Superintendent Registrar such evidence as he or she considers to be adequate and a statutory declaration, in a form standing approved by an tArd-Chláraitheoir, of the facts concerned made by—
(i) a person required by this Act to give to the registrar the required particulars in relation to the birth, or death, concerned, or
(ii) if such a person as aforesaid cannot be found, two credible persons having knowledge of the facts concerned.”
6.8 In addition some mention should be made of s. 2 of the Guardianship of Infants Act, 1964 which defines ‘mother’ as including a “female adopter under an adoption order”.
6.9 There is no doubt that the focus of the 1987 Act is on genetic inheritance. Section 35(8) is mandatory in form and provides that a court "shall" make a declaration of parentage where it is proved on the balance of probabilities that a specified person is the mother of a particular child. Such a declaration is binding not only on the parties but others by virtue of subsection (9). That provision does not, of course, of itself convey any particular meaning as to the term "mother".
6.10 Section 38 allows the Court to give a direction for the use of blood tests "for the purpose of assisting the Court to determine whether a person named in the application or a party to the proceedings […] is or is not a parent" of a relevant person. A blood test is defined in s.37 as meaning any test made with the object of "ascertaining inheritable characteristics". The results of a blood test are required to be set out in a report which must state, in respect of any person sampled (with the exception of the person whose parentage is in question), whether that person is or is not excluded from being a parent or, if not so excluded, the value of the results in determining parentage.
6.11 It is true, as counsel for the State argued, that the 1987 Act does not, in express terms, specify that parentage can only be determined by virtue of the establishment of a blood link or inheritable characteristics. On that basis counsel argued that the 1987 Act could not be said to have altered the common law definition of a "mother". In answer to the question as to what the point would be of elaborate provision being made for blood tests together with their receipt in evidence, in cases involving not only a dispute as to who the father might be (in which case the use of such tests was obviously of significant potential value) but also in the case of disputed motherhood, counsel suggested that such tests might be relevant in a limited number of cases where there was doubt as to the true birth mother (such as cases involving a mix-up in a maternity hospital or an abandoned child).
6.12 That being said, it does have to be acknowledged that the 1987 Act does seem to imply that, at a minimum, blood tests will play an important role in determining parentage, not just in the case of fathers but also in the case of mothers. It is true that the scientific advances which have given rise to the difficulty in this case (being the possibility of the separation of the identity of a genetic mother and a birth mother) were in their early stages at the time the 1987 Act was adopted. It is perhaps worthy of some note that the 1987 Act was closely modelled on equivalent United Kingdom legislation, the Family Law Reform Act, 1969, which was enacted well before those scientific developments occurred.
6.13 This is, of course, a case in which the parentage of the twins is in issue. It is clear that in such a case the Court could, had there been any dispute about the matter, have directed appropriate tests in accordance with s.38(1) of the 1987 Act and would, doubtless, have received back a report which would have made clear that the genetic mother was certainly just that. To use the language of s.40 of the 1987 Act, which deals with the contents of the relevant report, it seems almost certain that such a report would have specified that the genetic mother, far from being excluded, was in fact the mother to an extremely high level of likelihood amounting, in practise, to a certainty. Faced with such a report, on what basis could a court do other than conclude that the genetic mother was the mother of the twins?
6.14 It might be said that the Court could, provided it was satisfied as a fact that the twins had been given birth to by the birth mother, nonetheless conclude that the genetic mother was not the mother as defined in law by reason of the proper legal definition of the term "mother".
6.15 On balance, I have come to the view that, while the 1987 Act places a high weight on the existence of genetics, and, thus, inherited characteristics, it does not do so to the point of altering the definition of a mother as defined in law. If such were to be the case, then it seems to me that the Act would have needed to have gone further and have expressly altered that definition.
6.16 That leads to a consideration of the 2004 Act. Section 19 of that Act places a duty on parents, within three months of the date of the birth of a child, to give appropriate particulars of the birth. In that regard it is similar to the 1880 Act cited by Walsh J. in O'B v. S. The relevant particulars required are set out in part 1 of the first schedule of the Act and include the name of the mother and various other details concerning the mother.
6.17 On that basis it is argued that the term "mother" must, in that context, mean birth mother rather than genetic mother for, if they be different, the genetic mother might not necessarily even know of the birth so as to be in a position to meet the obligation to register.
6.18 There certainly seems to be a significant argument in favour of the proposition that the person on whom the obligation to register lies is, at least predominantly, the birth mother in any case in which there may be a distinction between the birth mother and the genetic mother. However, for like reasons to those which I analysed in the context of the 1987 Act, I am not satisfied that the 2004 Act can be said to affect a change in any pre-existing legal definition of the term "mother", in the absence of clear and express terminology used in that Act such as would demonstrate an intention on the part of the Oireachtas to alter the legal definition of "mother".
6.19 I have, therefore, come to the view that neither the 1987 Act nor the 2004 Act can be said to be couched in sufficiently clear terms to alter any previously existing common law definition of "mother". Undoubtedly, the 1987 Act emphasises genetic connection and inherited characteristics. Equally, the 2004 Act emphasises the woman giving birth. But neither does so in a way which establishes a clear intent to alter the legal definition of "mother". Against that background, and before considering any constitutional issues, it seems to me to be necessary to return to the common law position.
7. The Common Law Position
7.1 For the reasons which I have already sought to analyse, I am not satisfied that the maxim mater semper governed the common law of Ireland or at least did so in a way which defined only a birth mother as the mother of a child.
7.2 On the contrary, it seems to me that the common law regarded, as mother, both the genetic mother and the birth mother for, at the time when that common law evolved, there was no scientific possibility of those roles being carried out by two different persons. The law did not make a distinction between a birth mother and a genetic mother because science, to that point in time, could not separate the two roles. The 1880 Act simply recognised that scientific fact.
7.3 It follows, it seems to me, that the common law regarded both the genetic mother and the birth mother as being the mother of a child for the simple reason that there was, in practical reality, no distinction between them. For the reasons already analysed, I am not satisfied that the language of either the 1987 Act or the 2004 Act was sufficiently clear to alter that pre-existing position. What then is the consequence for the meaning of the term "mother" (unless specifically defined for a particular purpose in a particular statutory context) of the development of reproductive techniques which now allow those two roles to fall on different persons. That seems to me to be the real question which lies at the heart of this case. The law did not distinguish between a birth mother and a genetic mother because there was no distinction in scientific fact. Now that there is a distinction in scientific fact how does that previous legal definition apply? Before answering that question it is necessary to consider the extent, if any, to which the Constitution may have an impact on that issue.
8.0 The Constitutional Position
8.1 A starting point for the consideration of any possible constitutional impact on the issues which arise in this case must be the constitutional position of the family specified in Art. 41 of the Constitution. Article 41.1.1 recognises the family as the natural primary and fundamental unit group of society. The term "family" is not expressly defined in the Constitution but it does need to be noted that Art. 41.3 refers to the institution of "Marriage" "on which the Family is founded". It must be recalled that, for much of the life of the Constitution, the former Art. 41.3.2 prevented the enactment of any law providing for the grant of dissolution of marriage. The case law on the meaning of the family which predates the amendment to the Constitution which first permitted divorce must be seen in the light of a constitutional regime where marriage was indissoluble. It is also true that the European Convention on Human Rights recognises a broader range of units as being properly regarded as a family. Furthermore, it may well be said that one of the greatest changes in social conditions in Ireland over the last quarter of a century has been a radical alteration in what might ordinarily be understood by mainstream opinion as constituting a family.
8.2 As the matter was not argued it would be inappropriate to express any view as to whether the question of the proper definition of the term "family" as it is used in the Constitution needs to be revisited. At a minimum, it may be necessary to consider what the effect of the removal of the constitutional prohibition on divorce is on a harmonious interpretation of the relevant provisions of the Constitution. It is true, of course, that the constitutional regime now contemplates the possibility that persons may remarry after divorce. Thus, the presence of divorce does not necessarily mean that the family can be said to exist, from a constitutional perspective, outside marriage. On the other hand, there are difficult questions. Where a person is divorced and has remarried, what family, from a constitutional perspective, does that person now belong to? Clearly, as far as their spouse is concerned, it is the person to whom they are now married. But what about children from an earlier marriage? What family are they a part of? The definition of "marriage" in a constitutional context given by Costello J. in Murray v. Ireland [1985] I.R. 532 (at 536), as "an irrevocable personal consent given by both spouses which establishes a unique and very special life-long relationship" may need to be reconsidered in the light of the fact that the Constitution now recognises that the parties to an original marriage may become divorced and remarry other persons so that they may, in many senses, belong to a number of families. While the constitutional statement that the family is based on marriage remains, the precise definition of "family" is a matter which may need to be looked at again in an appropriate case.
8.3 However, it may well be that the precise current meaning of "family" in a constitutional context is not decisive for the purposes of this case. As Finlay C.J. pointed out in this Court in L. v. L. [1992] 2 I.R. 77, Article 41 is concerned with protecting the family from external forces rather than in dealing with the individual rights of members of the family. It is true that the question of family does have a material relevance to the constitutional status of many individuals including those who may be born as a result of one of the many forms of surrogacy that are now possible. If the traditional view of the meaning of the term "family" is to prevail at a constitutional level and if the arguments of the State in this case are to prevail, then one of the effects would be, potentially, to deprive the twins of what might otherwise be their status within a constitutional family.
8.4 Apart from Article 41, Article 42 focuses on education and recognises what are described as "parents" as the natural and primary educators of children. In State (Nicolaou) v. An Bórd Uchtála [1966] I.R. 567, this Court held that the word "family" when used in Article 42, referred only to those families where the relationship was based on marriage. If that situation prevails then there is a significant difference in constitutional status between children whose parents are married and those who are not. In the latter case, Article 43 confers constitutional rights on the mother (see G. v. An Bórd Uchtála) but not on the father. To the extent that the rights of a father were referred in J.K. v. V.W., it was suggested in W.O'R. v. E.H. [1996] 2 I.R. 248 (at 288) that those rights "do not refer to any constitutional right or any natural right recognised in the Constitution". Given that there is no doubt that the genetic father is regarded as the father of the twins in law then it clearly follows that the determination as to who the twins mother is to be, as a matter of law, will determine whether the parents of the twins are married and thus, potentially, affect important constitutional rights.
8.5 Be that as it may, the principal constitutional entitlement, which seems to me to arise in the circumstances of this case, is the entitlement which persons have, as part of their natural entitlement to human dignity, to have the State recognise their status by reference to such relationships as they may have, whether to parents, siblings, wider family members and within such family or families (however defined) as their status may place them. The State is, in my view, entitled, within bounds, to properly regulate the recognition of such status. Laws providing for the possibility of adoption, but also specifying the circumstances in which legally recognised adoption is to take place, form a clear example of one such regulation.
8.6 But I see no reason in principle why the legislature cannot constitutionally act to regulate the increasingly complex situation, which exists by virtue of the rapid development of reproductive science. As already noted, in the course of argument it was emphasised, not least by counsel for the amici, that the sort of matters which require regulation include issues concerning how the conduct of surrogacy procedures themselves are to be regulated (referred to as ex ante measures) together with issues concerning the status of persons who are born as a result of such measures (referred to as ex post measures). The need for regulation of both those types can hardly be doubted. But there are very many policy choices indeed involved in respect of both ex ante and ex post regulation. It seems to me that, in this increasingly complex area, it is important to acknowledge that the Constitution confers a wide discretion (but not an unlimited one) on the State to legislate in the public good to ensure that proper protection is afforded to those, particularly the vulnerable, who might be exploited in the context of surrogacy arrangements, but also in bringing certainty to issues relating to the personal status of individuals born as a result of such arrangements.
8.7 But the problem with which this Court is now faced is that no such legislation has as yet been enacted. The question which needs to be addressed is as to whether the Constitution can be said to require that the existing legal status of persons in the position of the twins in this case, requires to be determined in any particular way. Put simply, in the absence of legislation specifically dealing with the matter, the current status of the twins must be considered by reference to the common law definition of "mother", to any relevant statutes which might impact on that position and to any requirements which the Constitution might mandate. I have already indicated that, in my view, the common law position was one which did not distinguish between a genetic mother and a birth mother. I have also indicated my view that neither the 1987 Act nor the 2004 Act altered that position. I cannot see that the Constitution requires that that position be altered either. The Constitution permits the State to regulate. It may well be that the State will choose to regulate in such a way as will cause, in some cases, a birth mother to be regarded as a mother, and, in other cases, a genetic mother to be regarded as a mother. Within constitutional bounds it is largely a question of policy for the Oireachtas to determine the precise parameters of any such regulation.
8.8 There is no doubt that the idea that two persons may, in different ways, be regarded as the mother of a child is counter-intuitive. But so also is not regarding the person who gives birth to a child as being its mother, and, equally in not so regarding the person who has given the female half of the genetic material which underlies such a child's makeup. Advances in reproductive science have led to a situation where, in the absence of legislation, whatever the law determines as the meaning of mother will, to an extent, be counter-intuitive in some cases. It may well be that the proper answer to the question as to who should be recognised as a mother in the often complex situations which can arise in this field is "it depends". However, that begs the next question. On what does it depend? That involves many policy choices which are primarily a matter for the Oireachtas and not, unless they break the limits of what is constitutionally permissible, the courts.
8.9 I have reached those conclusions on the lack of a constitutional effect on the issues which arise in this case only because I have concluded that the law, in the absence of legislative amendment, regards both a birth mother and a genetic mother as "mothers" or at least as having some of the legal characteristics of a mother. If I had come to a different conclusion on that point then there might well have been significant constitutional issues. To what extent would it be legitimate, for example, in current scientific conditions, for a definition of "mother" to potentially deprive a child or children of the status of forming part of a constitutionally protected family including their father? To what extent would it be constitutionally permissible, on the other hand, to deprive a birth mother of any potential recognition as a mother? These, and doubtless other, constitutional issues will need to be considered in the difficult and delicate balancing exercise in which the Oireachtas will have to engage before finalising any legislative intervention. They are also issues which, in my view, necessarily would loom large if either the genetic mother or the birth mother were, by definition, in all circumstances, and without any possibility of legal intervention, to be excluded by definition from being a mother for constitutional purposes. However, given the views which I have formed on the current definition of "mother" (in the absence of legislative intervention), those issues do not seem to me to arise on the facts of this case.
8.10 For those reasons I have come to the view that the Constitution does not mandate any different approach to the definition of "mother" than that defined by the common law amended, if it be amended, by constitutionally permissible legislation. It follows that, in my view, in the absence of definition, the term "mother", when used in Irish law in current scientific circumstances, applies equally to a birth mother and a genetic mother. In the light of that finding I will turn shortly to the consequences of that finding for the issues which arise in this case. However, I should deal first with the question of whether this case can be resolved on the basis solely of a construction of the 2004 Act.
9. Are the Issues simply ones of Statutory Construction?
9.1 On one view it might be said that the only issue which really arises in this case is as to the proper construction of the relevant provisions of the 2004 Act. The R family and the birth mother seek a declaration that the genetic mother is the mother of the twins and also a consequential order requiring the alteration of the registration of the birth of the twins to reflect that fact.
9.2 On that basis it might be said that the two issues are essentially the same for they both might be said to turn on the question of who should be registered as the mother under the 2004 Act. It seems to me that such analysis raises an important question concerning the true issues which arise in this case. As noted towards the beginning of this judgment it can, of course, be the case that, for a particular legal purpose, a word is given a specific definition which may not exactly conform with the commonly accepted meaning of the word concerned and which may not, therefore, affect the way in which that same word might be interpreted if used in a different context outside the scope of the measure in which the definition is to be found. The fact that, for the purposes of one specific piece of legislation, a particular term is defined in a particular way does not necessarily mean that that term, used anywhere else, has the precise meaning which its definition in the relevant legislation provides.
9.3 On that basis it might be said that, subject to ensuring that the relevant legislation is interpreted in a constitutionally permissible fashion, this case really only turns on what the term "mother", as used in the 2004 Act, means. Looked at that way the issues might appear to come down largely to ones of statutory interpretation with a potential constitutional element to that interpretative exercise. On that basis it might be said that the only real issue in this case is as to the meaning of the term "mother" as used in the 2004 Act informed, if necessary, by any constitutional requirements.
9.4 However, I am not persuaded that this case can be resolved on such a narrow basis. In order to decide this case on that basis, it would be necessary to accept one of two propositions. Either that the State has devised a system for the registration of births which allowed for the registration of a person as a mother who was not to be regarded as the mother of the child concerned for most other legal purposes or that the definition or interpretation of the term "mother" as used in the 2004 Act must significantly influence or even determine the meaning of that term for other (even potentially constitutional) purposes.
9.5 In other words, if this case is to be resolved solely on the basis of a consideration of the regime for the registration of births without regard to the legal definition of the word "mother" for wider purposes such as those canvassed in the course of these proceedings (the Constitution, succession, inheritance, status and the like) then it would follow that a person who is to be regarded as the "mother" of a child for, for example, inheritance purposes, either might not be the same person as one who was properly registered as the "mother" of the same child for the purposes of the registration of the child's birth or that the meaning of "mother" in the 2004 Act governs inheritance rules. Obviously such a situation can arise where, for example in the case of adoption, there is a further intervening and formal event, being the adoption of the child concerned. But in such a case there would be further formal measures (being the relevant adoption proceedings) which would recognise the change in status concerned. But in the absence of such formal change is there a proper legal basis for treating the term "mother" as being different for registration as opposed to other purposes?
9.6 In addition, and as I have already noted, there is the constitutional dimension. Given the many references to family and mother in the Constitution, can it be said that the State could properly exclude a person from being registered in the registry of births as the mother of a child (by reason of the definition of motherhood for the narrow purposes of registration) where that person nonetheless had the potential to be regarded as a mother for constitutional purposes depending on the circumstances of the case? Or, alternatively, is someone to be regarded or not regarded as a mother for constitutional purposes by reference to the meaning of mother in the 2004 Act? There was, of course, no constitutional challenge to the 2004 Act and for that reason it would, therefore, be wholly inappropriate to make any comment on the constitutional status of that legislation. I should also restate my view that, in the complex situation with which it is now faced, the Oireachtas must be afforded a wide margin of appreciation in attempting to regulate the very difficult issues which arise. However, it seems to me that a form of regulation which precluded any possibility in any circumstances of a genetic mother from being recognised as the mother of a child or which precluded giving at least some recognition to the status of the genetic mother in some appropriate way, would be of doubtful constitutional validity. It would, for example, as already noted, preclude persons, such as the twins in this case, from ever being part of a constitutional family with their father.
9.7 While not decisive, it is also worth noting that persons, understandably, place a high value on the way in which their status is officially recognised. We do not maintain, in this jurisdiction, any general register of persons which records matters such as their age, gender and indeed, parentage. The closest we have is the register of births, marriages and deaths. In those circumstances it is hardly surprising that persons are concerned that the way in which their birth is registered accurately reflects the legal situation, for it is, in normal circumstances, the only official record of their status. While it may, at least in some circumstances, be possible for the State to provide, in legislation relating to registration, for definitions which may not accord with everyone's view, it is nonetheless important that the register of births reflects, as best can be achieved, the general legal position. It would, in my view, certainly in the absence of some significant countervailing factor, be difficult to justify an important definition for the purposes of registration differing very substantially from the meaning of the same term in other legal contexts.
9.8 It might, of course, be that the Oireachtas actually took the view that, for registration purposes alone, the birth mother was to be regarded as the mother whatever might be the proper meaning of "mother" in other legal contexts. But the suggestion that "mother", as the term is used for registration purposes in the 2004 Act, means birth mother is one of inference rather than resulting from a clear legislative intent. For that reason, it seems to me that, certainly in the absence of a clear wording displaying a legislative intent which would require a different approach, the term "mother" as used in the 2004 Act should correspond, insofar as possible, to the meaning of the term "mother" as used in the general law. Thus, I would approach the issues in this case on the basis of first considering the meaning of the term "mother" in general law and only then considering whether there was anything in the 2004 Act which displaced that meaning for registration purposes. I would not favour an approach which looked at the issues which arise in this case the other way round.
9.9 For the reasons which I have sought to analyse, I am not satisfied that the term "mother", when used as a general and undefined term in the law, necessarily excludes either the birth mother or the genetic mother. In the absence of constitutionally permissible regulation which would, in the circumstances of a particular case or category of case, wholly exclude one or other of those persons, I am satisfied that both are entitled to be regarded as having some of the characteristics of a mother. Given that view of the general law I am not satisfied that there is anything in the 2004 Act which is sufficiently clear to mandate excluding a person who might otherwise be properly regarded as having some of the characteristics of a mother from being registered as such in some appropriate fashion. For those reasons I would not favour attempting to resolve this case on the narrow basis of a construction of the registration legislation even if approached with a constitutional eye. I, therefore, turn to the consequences of and conclusions to be drawn from the findings already addressed in this judgment.
10. The Consequences and Conclusions
10.1 For the reasons earlier set out I am, therefore, satisfied that both the genetic mother and the birth mother have some of the characteristics of "mothers" as that term is currently used in our law. The term "mother", historically, referred to both because both were, as a matter of then scientific fact, necessarily the same person. They are no longer now, however, necessarily the same person. But neither has, in my view, by reason of that scientific advancement, necessarily lost their status.
10.2 I fully appreciate that a legal regime where two persons can be regarded as having some of the characteristics of a mother of a child for legal purposes brings with it many complications concerning the very types of matters which were the subject of argument in this case. Issues of constitutional status; issues of citizenship and inheritance; and doubtless others. But those issues arise whatever the answer. Those same issues have the potential to create difficulties if either the position argued for by the R family or that advanced by the State is found to prevail. A child having two persons who have some of the characteristics of a mother may be highly counter-intuitive. But so is a child not being regarded as the offspring of the person who gives birth to them, but so equally is the person who has given such a child half of their genetic material not being regarded as the child's parent. Whatever the answer, in the absence of careful, detailed and sensitive legislation, the result will be counter-intuitive, messy, create a whole range of legal difficulties and, undoubtedly, be very unsatisfactory from the perspective of many persons.
10.3 But there just is no solution short of the sort of legislation which may now be contemplated. In the meantime, all a court can do is to declare the position as it currently stands and invite the legislature to take urgent action. For the reasons which I have sought to analyse I am satisfied that proper legal analysis confers aspects of the status of motherhood, on the law as it currently stands, on both the genetic mother and the birth mother. Insofar as it might be a material consideration, it seems to me that such an eventuality runs the least risk of unfairness. That is not to say that there may well be cases where the merits would overwhelmingly favour declaring either a birth mother or a genetic mother as being properly regarded as the mother to the exclusion of the other. But there is just no legal framework in which such a decision can properly be taken which differentiates between one case and another. In the absence of legislation the law must be the same in all cases. In those circumstances a law which does not exclude either has the potential to do less harm than a law which necessarily completely excludes one.
10.4 While it might well cause significant difficulties for the registration of children born as a result of the advances in reproductive science which are at the heart of this case, nonetheless it seems to me, at present, that a recognition that both a birth mother and a genetic mother are entitled to be registered in some way is the least bad solution. Pending any relevant legislation it seems to me to be a matter for an tArd Chláraitheoir to put in place such administrative measures as might be necessary to give effect to that type of registration.
10.5 While appreciating that this view does not command a majority, I would have proposed that the Court make a declaration to the effect that the genetic mother is the mother of the twins without prejudice to the status of the birth mother. I would also have proposed making an order directing an tArd Chláraitheoir to take whatever steps might be necessary to ensure that the registration of the birth of the twins reflects the status of the genetic mother thus declared. In the light of the recognition that this would cause administrative difficulties for an tArd Chláraitheoir I would, had this been a majority view, have proposed hearing counsel further on the precise form of order which should be made.
Judgment of Mr. Justice John MacMenamin dated the 7th day of November, 2014.
1. I would agree with the order proposed by Denham C.J., Hardiman J. and O’Donnell J. in allowing the appeal. However I wish to add some observations of my own on the issues before the Court, and the form of order which a Court might make, in an exceptional case such as this. The appeal is against the judgment of Abbott J. in the High Court wherein he granted a declaration pursuant to s.35 8(b) of the Status of Children Act 1987 that the fourth-named applicant, C.R., is the mother of the first- and second-named applicants, and a further declaration that the State’s continued failure to recognise and acknowledge the applicants, C.R. and O.R. as the mother and father of the two children was unlawful, and failed to vindicate and protect the applicants’ constitutional rights under Articles 34, 40.4.1, 40.3.2, and 41 of the Constitution.
2. At first sight, the circumstances of this case would attract immediate sympathy. The fourth-named applicant/respondent, C.R. (to whom I will refer without it having a legal significance as the “the genetic mother”), and O.R. the third-named applicant/respondent (“the genetic father”), are a married couple who wished to have a family. Unfortunately, the genetic mother suffers from a congenital medical condition which prevents her bearing children. Consequently, the couple came to a surrogacy agreement with the genetic mother’s sister (“the birth mother”). The agreement was that the father’s sperm, and the genetic mother’s egg, would be implanted in the birth mother’s womb. The birth mother would undergo the process of gestation, and ultimately give birth to the child or children. Arrangements were put in place by a Dublin fertility clinic. The parties signed a surrogacy agreement which sought to address various legal consequences which might arise both during, and after, the pregnancy. As it happened, the result was the birth of twins. These are the first- and second- named applicants/respondents. They are now living with the genetic parents. To all intents and purposes they are all treated as being one family.
3. It might appear that registering the genetic parents as being the legally recognised, parents would be a straight-forward resolution in this case. But this would be to rush to judgment. Even after this Court had heard the ably presented oral arguments, two news stories emerged which demonstrated that, unfortunately, surrogacy can raise difficult issues. It is necessary only to present the outline of both accounts here without sensationalism. The first report related to a twin baby boy with Down’s syndrome who was “left behind” by his Australian commissioning parents with his Thai surrogate mother because, it was said, of a number of medical problems.
4. The second case concerned another commissioning couple, where it was suggested, an Australian commissioning father had engaged in sexual misconduct with the surrogate children, in circumstances where the Thai surrogate mother had been ambivalent about the commissioning parents taking the twins to Australia.
5. Such cases are not unique. They demonstrate some of the issues which can, sometimes, arise with surrogacy. In this appeal, the adult parties entered into an altruistic arrangement amongst the adult parties. There was no commercial dimension. But the question arises as to whether the facts of this case be segregated from others in law? This judgment seeks to approach the questions arising, primarily at the level of statutory interpretation, within the parameters argued in the appeal.
6. I differ from my colleagues in the majority in that, I would have been disposed to grant an alternative order, as considered later in this judgment, which might further vindicate the children’s rights, as far as is practicable in accordance with the Constitution. That proposed order would be that the matter be remitted back to the High Court in order to consider whether the third- and fourth-named applicants be appointed legal guardians of the first- and second-named applicants. This could be as a preliminary to adoption procedures. At the High Court hearing now under appeal, counsel for the State indicated that the authorities would co-operate in expediting such a course of action. The effect of such orders and procedures, if completed, would be that, under Irish Law, the twins, would for all purposes, have been regarded as their genetic parents’ children.
7. Having outlined the events following the birth of the children, this judgment addresses the question as to how the statutes, said to inhibit the genetic parents’ rights, are to be construed, under Irish law. Thereafter the judgment considers how, exceptionally, the rights of the children might be vindicated in accordance with law in this unique case.
8. For clarity, references to “the applicants” will be to the genetic parents, save where the context otherwise clearly indicates. The first-named respondent will be referred to as the “An t-Ard Chláraitheoir”. The notice party will be referred to as “the birth mother”, the Equality Authority and the Irish Human Rights Commission as the “amici curiae”.
Events Subsequent to the Birth of the Children
9. Subsequent to the twins’ birth, the question arose as to genetic father and the birth mother being registered as the parents of the children. This was because, in the law of the State, it was the birth mother who was recognised as being “the mother” for registration purposes. This approach, hitherto universally applied, was in reliance on a legal principle, expressed in the Latin terms mater semper certa est, that is, the (identity of the) mother is always certain. This is to be contrasted with the position of paternity, which, traditionally, was established by a presumption arising from marriage to the mother of the child.
10. Subsequent to the decision by An t-Ard Chláraitheoir, the genetic parents’ solicitor wrote, seeking to have their clients registered as being the twins’ parents. An t-Ard Chláraitheoir refused to do this on the basis of legal advice. The genetic parents then sought to “correct” the entry in the register. They were informed that the matter could not be treated as being an “error of fact”, pursuant to the provisions of s.63 of the Civil Registration Act, 2004, which would allow for such corrections and that there was no legal basis to treat the entry as incorrect. The operation of the 2004 Act was extensively considered by McKechnie J., then in the High Court, in Foy v An t-Ard Chláraitheoir, Ireland and the Attorney General [2002] IEHC 116.
The Public Interest and Public Policy Aspect of the Case
11. The issue of interpretation in this case does not concern just one adult couple, the twins and their particular situation. All these interests and rights fall to be determined, insofar as the issues are of statutory interpretation. In that process of interpretation there can be a substantial public policy dimension. The implications of some elements of the case would have consequences well beyond its apparently confined facts. While surrogacy itself does not fall for consideration here, the subject raises concerns in some quarters as being both exploitative of women, (surrogate mothers), the absence of legislation in some countries, and also because it infringes children’s rights, an issue considered later in this judgment. Our courts will be asked to address further issues in this area in the future. The gravity, range and policy dimensions of these questions are such that they might be more appropriately addressed in the Oireachtas, rather than the Courts.
12. Some indication of the complexities arising from the general issue here can be gleaned from the fact that, after the High Court judgment, which found in favour of the applicants herein, the then Minister for Justice and Equality drafted and produced a draft Bill seeking to address questions arising from that judgment. It is not the function of this Court to provide advisory judgments on proposed legislation. However the very complexity of the matters addressed in the draft, insofar as it addressed surrogacy, showed the ethically profound nature of the questions engaged both before and after birth. This judgment expresses no view relating to the constitutionality of any intended legislation. The question which the Court is asked to address, rather, is how, the term “mother” in present legislation, now already in effect, should be interpreted.
The Main Issue
13. The main issue in the case derives from the fact that registration of birth under the Civil Registration Act 2004 is applied, according to the “mater semper certa est” principle. The applicants do not say that the application of this principle in other circumstances is, unreasonable, or arbitrary. But they contend that the 2004 Civil Registration Act should be interpreted so as to allow for their registration as the parents. The Equality Authority and the Irish Human Rights Commission, which both were joined as amici curiae, prepared valuable and thought-provoking submissions. Counsel for both bodies, Ms. Nuala Butler S.C. submits that the refusal to register the genetic parents is an invidious discrimination, prohibited under Article 40 of the Constitution, which, while declaring all citizens as equal before the law, also provides that the State may, in its enactments, have due regard to differences of physical and moral capacity, and of social function.
Relevant Provisions of the Civil Registration Act, 2004 and the Status of Children Act, 1987
14. To fully understand the applicants’ case, it is necessary to consider now the scheme of the legislation under which the register is operated.
15. S. 22(1) of the 2004 Civil Registration Act (“the 2004 Act”) provides:
16. The Status of Children Act 1987 permits a Court to make a declaration of parentage. This may be established by blood, or DNA testing. In his testimony to the High Court, An t-Ard Chláraitheoir made clear that, if his office was presented with a declaration as to parentage in favour of the genetic parents pursuant to s.35 of the 1987 Act then he would act on it for registration purposes without further enquiry. Insofar as material, s.35 provides:
(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.”
17. To achieve the outcome sought, in the appeal, the applicant parents must demonstrate a legal rationale whereby the legislation should be interpreted and applied so they can be registered. Mr. Gerard Durcan, S.C., for the applicants argues that the relevant legislation does not in terms require, that parents, or in particular a female parent, should necessarily be the birth mother. He is supported in this by counsel for L.L, who is the surrogate mother who is the notice party. In fact, Mr. Durcan S.C. submits, there are legal authorities which recognise the blood or genetic link between parents and children as being a factor in determining parenthood. He contends that his clients are entitled to be registered as “the parents”. One immediate consequence of such registration would be, of course, to raise the question as to what is the status of the birth mother? As the case histories mentioned earlier, (and later) in this judgment, show, these are not at all easy questions, and would require a form and range of analysis not easy to perform in an adversarial court setting, where the arguments are largely confined to the facts of the case.
18. Counsel for the applicants point out that under the 1987 Act, there is power for a court to direct the use of blood tests for the purpose of determining whether a person named in an application is, or is not, a parent of the child whose parentage is in question. These tests operate by ascertaining the presence or absence of shared inheritable characteristics as between the two people concerned. This Court has already determined on the lawfulness of directing DNA tests in addition to blood tests (see JPD v. MG [1991] 1 I.R. 47). As McCarthy J. pointed out in his judgment there:
20. It is now necessary to consider the derivation of the mater semper principle, which is not only applied in Ireland, but in a number of European countries. What is the legal status of this principle?
The Legal Status of the Mater Semper Certa Est Principle
21. Mr. Michael McDowell SC, counsel for the State forcefully submits that the mater semper doctrine is an irrebuttable presumption in common law. Thus, he says, there was no option but to apply the principle on the basis of the legal advice received. It is a matter of law. The legislation, he submits, must always be interpreted in accordance with the mater semper principle. Consequently, he submits that the legislation is not open to some other interpretation.
22. One might pause here to observe that legislative provisions are frequently interpreted and applied in accordance with “canons” or principles of interpretation, some of which are identified in the Interpretation Act, 2005. Although not explicitly referred to in argument, that Act does permit legislation to be construed in the light of “changes in the law, social conditions, technology, or the meaning of words used in the Act … which have occurred since the date of passing of that Act …”, but only insofar as the text, purpose and context permit (see s.6, the Interpretation Act 2005). Section 20 of the Act provides:
(b) the Act under which the enactment is made.”
23. As is the case with many legal maxims, the provenance of the mater semper principle is shrouded in the mists of history. The question of such a distinction did not truly arise, in science or law until the twentieth century. What Mendel, working in Central Europe, discovered about inherited traits in the 1850’s and 1860’s did not become common currency until a process of rediscovery in the early 20th century. There is no doubt that there was a legal presumption that paternity was established by marriage to the mother of a child (see further, International Surrogacy Arrangements 2013 Hart Publications; in particular “Surrogacy in Ireland” by Dr. Maebh Harding). With one exception, adverted to below, we have not been referred to any relevant pre-independence statute carried over in our law by Article 73 of Constitution of 1922 or by Article 50.1 of the Constitution of Ireland 1937. But a legal interpretation dependent on silence, or omission, must necessarily be measured against other provisions, where, by explicit expression or clear implication, the meaning of a term is clear and generally understood. While a term in an enactment may be “updated” to encompass modern developments that may fall within the ambit of such a term, its meaning may not be completely altered by an application of an “updated” construction which was not within the original intendment, or its commonly understood meaning. Neither can the purpose of a provision be altered in this way. An interpretation which will create broad uncertainty, ambiguity or doubt, is to be avoided. Assuming, as a matter of interpretation, that a genetic mother is registered under the present regime, would this entail that a birth mother had no legal status; an indeterminate status; or a status depending on the agreement or actions of surrogates, and on the terms of a surrogacy agreement? The possibility of a child having in law, two mothers (one genetic and one birth), is surely telling. Such a contingency creates uncertainty. The indicia of motherhood found in many other of our statutes, referred to later, relate to pregnancy and child bearing but not, at present, to genetics. I would add that while a statute can be interpreted in accordance with ECtHR jurisprudence, that process of interpretation must accord with established rules of law relating to such interpretation and application (s.2 ECHR Act, 2003). Recent ECtHR jurisprudence described at the conclusion of this judgment allow for a wide margin of appreciation for member states to legislate on, or even against, surrogacy, so far as adults are concerned. The Article 8 and Article 19 rights of children, considered in those judgments, are to be seen in the light of the fact that French law did not provide a remedy for them to be placed in a family unit, even by adoption.
24. By contrast the absence of any statutory provision which specifically recognises the rights or attributes of a “genetic mother” weighs against the applicants’ case. The mater semper principle is referred to by the House of Lords in the Ampthill Peerage Case [1977] AC 547, but not in such terms as to be definitive as to its legal status in our law. It is referred to also in Johnson v Ireland (app. No. 9697/82) (ECtHR 18 Dec, 1986) by the ECtHR Grand Chamber, but again in passing.
25. But as I now seek to explain, the principle of a nexus, or a clear link between birth, pregnancy and maternity is long established, in statute, in case law and, implicitly, in the Constitution itself. In the case of statutes, context and purpose are fundamental to interpretation. An examination of all the extant legislation, in context, shows a legislative purpose which is to provide for certain protections for pregnancy motherhood, and children, either explicitly or impliedly but, in doing so, recognising the status of “birth motherhood”. Underlying the entirety of this appeal is the question as to the purpose of the provisions in question. The applicants say should now be applied, in a manner which should include them. The amici curiae say the application is unjustly discriminatory. However, in interpretation, as well as context and purpose, one may have regard to public policy as expressed in a statute. The purpose of the provisions now considered, the State respondents say, is to identify clearly the holders of rights, entitlements, and duties. Counsel for the State submit this is an area where the public, and the State, has legitimate interest in maintaining clarity, and avoiding doubt.
The Statutes
26. The existence of the mater semper principle, perhaps best seen as an underlying assumption or implied understanding, in law, was recognised in O’B v. S [1984] 1 I.R. 316 where Walsh J. observed that the principle applied “in Irish law by reason of the provisions of ss. 1, 7 and 28 of the Births and Deaths Registration Act (Ireland), 1880.” A consideration of those provisions, together with the forms contained in the Schedule to that Act, demonstrates that, while the mater semper principle might not, as argued by counsel for the State, be an “irrebuttable presumption”, it was, nonetheless a premise, or implied meaning, on which references to “mother” was always predicated The sections of the 1880 Act, identified above, deal with the duties of parents or other persons present at birth, and the procedures necessary for the registration of the birth of a child. The actual terms of s.1 of the Act of 1880 impose a duty on the “father and mother of the child” or “the occupier of the house in which … the child is born” and “… each person present at the birth” and “… 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”. Section 28 of the 1880 Act makes reference to the circumstances in which the Register is not to be evidence of paternity, unless it was signed by some person present at the birth of the child. The implied meaning of the term “mother” is clear from these.
27. But this is not the sole relevant legislative provision. The meaning of a term in one statute will not always have the same meaning in another statute. But without going so far as to hold that statutes next considered are also in pari materia, (on the same subject matter), there must come a point where, the universal identification or symmetry of common attributes or the same meanings in a variety of statutes has a real significance beyond the scope of any one statutory meaning or definition (Barras -v- Aberdeen Steam Trawling & Fishing Co. [1933] AC 402). This principle of interpretation will apply, unless the statutory context indicates otherwise.
28. The provisions of s. 22 of the 2004 Act, (already referred to earlier) actually contain the word “mother” on some eight occasions, and always in the traditionally understood context involving a woman giving birth. This does not sit easily with the appellants’ argument based on an application of a “genetic identity” criterion. The argument hinges also on a close interrelationship between the 1987 Status of Children Act and the 2004 Civil Registration Act.
29. In a less enlightened era, the Illegitimate Children (Affiliation Orders) Act, 1930, defines the term “mother” in the following terms:
30. Even at a time after the possibility of in vitro fertilisation was thought of, the same implied understanding of “mother” is to be found in statutory form. To take further examples, s.28(2) of the Social Welfare (Consolidation) Act, 1981 provides:
32. The link between motherhood and birth is also to be found in the Maternity Protection Acts, 1994 to 2004, designed and intended to protect the rights of both pregnant employees, and employees who have given birth. Section 16 of the 1994 Act (as amended by s.10 of the Act of 2004) defines “the mother” as a person “who has been delivered of a living child …” The protection extended by the legislation again links or connects pregnancy, birth and motherhood (see also s.6 of the 2004 Act).These close associations are difficult to ignore.
33. Reverting then to the 1987 Status of Children Act, that statute also contains a number of references showing the same legislative intent and intended meaning of the word “mother”. Section 5 of the 1987 Act contains an amendment to the Irish Nationality & Citizenship Act, 1957. That amendment provides that in relation to the Act of 1957, references to father, mother or parents includes, and shall be deemed always to have included, “the father, mother or parent, as the case may require, who is not married to the child’s other parent at the time of the child’s birth or at any time during the period of 10 months preceding the birth”.
34. Elsewhere, the Status of Children Act, 1987 makes provision in relation to the maintenance of a child. This provision includes claims against a parent which may be made under s.15 of the 1987 Act, (effectively a duty on the father to maintain the mother) to make payments of “a lump sum in respect of the expenses for the birth or funeral of a child …”
35. In fact, other provisions of the 1987 Act itself create a difficulty for the construction for which the applicants’ argue. The same strong implied contextual linkage between conception, gestation and birth emerges in s.46 of the Act, in the context of identifying procedures for registration of births of children. This section provides:
(a) during a subsisting marriage to which she is a party, or
(c) within the period of ten months after the termination, by death or otherwise, of a marriage to which she is a party,
then the husband of the marriage shall be presumed to be the father of the child unless the contrary is proved on the balance of probabilities. …”
37. Establishing the applicants’ claim, therefore, is not easy, having regard to this commonly used meaning or understanding of the term mother as being a woman who, having become pregnant gives birth to a child. It is self-evident that, in day to day reality, the role of a mother goes far further than this. But for the purposes of this discussion, it is the connection with birth which is material, in discerning the context, intent and purpose of the provisions in question. No other contrary interpretation appears in any Act of the Oireachtas. To my mind, in the light of this widespread usage and meaning, it is not possible to say that we are dealing here with a term “mother” as specifically defined for a particular purpose in enactments. The meaning imparted is too universal to allow for such a conclusion. Clearly, in the case of adoption the status of mother, otherwise generally understood, is altered by statute and procedure intended for that purpose.
Provisions of the Constitution
38. The proposition advanced by the applicants must also be seen in light of the provisions of the Constitution which deal with women and the family, even though, just as in statute law, one cannot find the mater semper principle itself explicitly stated in constitutional terms. The issue in question simply was not within the contemplation of the drafters of the Constitution in 1936/1937.
39. However, Article 40.3.3 provides that:
I am not persuaded that the constitutional provisions on the family (Article 41) or education (Article 42) assist in the process of interpretation.
Interpretation by the Courts
40. The prior, generally understood, meaning of mother is to be found in recent authority interpreting the meaning of Article 40.3.3.
41. In Roche v. Roche [2010] 2 IR 321 this Court addressed the constitutional and legal status of frozen embryos, specifically in the context of whether a frozen embryo could constitute an “unborn” within the meaning of Article 40.3.3. Murray C.J. observed in the course of his judgment that:
44. The High Court judgment contains reference to the absence of material before that court as to the existence of a European consensus on the question of surrogacy. This Court has been informed that seven member states of the European Union have a complete prohibition on surrogacy (Bulgaria, France, Germany, Italy, Malta, Portugal and Spain). Eight more prohibit commercial surrogacy. Greece is the only E.U. member state which allows for altruistic surrogacy arrangements.
45. In summary, the balance of legislative tradition weighs heavily in favour of the proposition that, unless a contrary intention is expressed, in legislation, the birth mother should be regarded as being “the mother” of the child. These considerations of purpose, intent and context weigh significantly against the construction of the 1987 Statute now urged on behalf of the applicants.
Analogies with Adoption Issues under Legislation
46. The child’s welfare principle also lends itself to a clear “purpose and intent” analysis of the term “mother”. There is a state interest in clearly identifying parental duties towards children in an area where complex problems can arise. The case of N v. HSE (the Baby Anne case) [2006] 4 I.R. 344, revealed the difficulties which can emerge in circumstances where a natural mother, having placed her child for adoption, reassessed her decision, and later, having married the father, successfully commenced proceedings for the return of the child from the potential adopters. In Dowse v. An Bord Uchtala & The Attorney General [2006] 2 IR 507, the parents having identified a suitable child in Indonesia adopted that child under Irish law. But later, when the adoptive mother herself became pregnant, the couple relinquished the care of the adopted child. It is not hard to envisage analogous cases in the area under consideration.
47. These reminders, and the international cases cited at the beginning of this judgment, show the State interest in regulating this sphere of human activity relating to adoption, and, a fortiori, surrogacy. The applicants’ argument, as it stands, does not readily allow for such a state role or regulation either by statute or the courts. In so far as it may be material, it is worth observing that, in the neighbouring jurisdiction, the view was taken that the first step in recognising that a relationship could be created by assisted reproduction was by legislation (see s. 27 Family Law Act 1987, and the Human Fertilisation and Embryology Act 1990).
Blood and Genetic Link
48. In the light of these considerations, it is necessary now to turn to the jurisprudence of our courts in addressing the question of the blood or genetic link upon which the applicants seek to rely. It is true, of course, that there have been a number of judicial pronouncements on the question of such links. But, it is necessary to point out such dicta arise in a quite different context.
49. In law, as it is frequently pointed out, “context is all”. Some of the observations on “the blood link” cited on behalf of the applicants relate to the establishing of paternity or to the access rights of a sperm donor, to a child, in the custody of a lesbian couple. It is quite true that in that case, JMcD v. PL [2010] 2 IR 199, Fennelly J. observed that:
51. Quite often discussions revolve around the notion of a “right to a child” i.e., the right to have, or to rear a child or a family. But sometimes such discourse can obscure the rights of the child. On behalf of the Equality Authority Ms Nuala Butler SC in her submissions adverted to these very important rights. The following usefully re-illustrate some of the policy considerations which may arise; by Article 8 of the United Nations Convention on the Rights of the Child (UNCRC), state-parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations. The same Article provides that parties are pledged to provide appropriate assistance and protection with a view to establishing identity speedily when a child is deprived of some or all elements of his or her identity. Article 9 UNCRC contains guarantees to prevent a child being separated from his or her parents, save when such separation is deemed necessary, and in the best interests of a child, by a competent judicial authority. When such a process might be necessary, all parties should be given an opportunity to participate in legal proceedings and make their views known. Under Article II UNCRC, state parties are to take measures to combat the illicit transfer and non return of children abroad. Article 21 of the Convention sets out extensive and detailed requirements in relation to the application of the child’s “best interests principle” in adoption, including safeguards and adoptive counselling. Adoption placement is not to result in improper financial gain for those involved in such procedures. If these principles are broadly applied in the case of adoption, the same question may arise in the case of surrogacy. Moreover, the blood/genetic link involves not only “genetic” fathers and mothers; but a range of other potential family connections which a child may wish to establish. While these observations might appear somewhat perceptive to the task of interpretation of the word “mother” they demonstrate the very broad policy considerations which arise, which show that a narrow ‘value neutral’ interpretation of the term “mother” in the provision is not feasible.
52. The “mater semper” maxim refers not only to rights, but to duties. The applicants’ argument begs the question as to who, precisely, would owe a duty of protection, care, maintenance and education to children, in a maternal context? This is not an area where ambiguity or doubt is desirable, especially in circumstances, where, the possibility exists of disputes between the rights of genetic parents against birth mother, or a rights-conflict where just one parent is a donor of sperm or gamete; or a case where neither of the commissioning claimants has any genetic link with the child. The need for legislation is clear. It has been clear since the mid-1990s when Irish academic scholars and highly experienced practitioners in family law drew attention to the problem.
The High Court Judgment Considered in More Detail: Equality
53. This section of the judgment addresses in more detail the submissions of the Equality Authority and the Irish Human Rights Commission in the context of the High Court judgment which was based on a finding of invidious discrimination. These submissions were particularly valuable in placing the quite narrow issue here in a broader context. Can the applicants’ argument successfully be framed in terms of Article 40.1 of the Constitution? That Article, while recognising that “All citizens shall, as human persons, be held equal before the law”, adds “This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
54. The trial judge based his findings on a number of sequential steps. He noted that DNA chromosomal testing can be scientifically determinative of parenthood. He acknowledged that, while the input of a gestational mother to an embryo and foetus was to be “respected and treated with care and prudence”, nonetheless the children’s predominant feature was their genetic material. On this basis, he concluded that a failure to recognise the role of the genetic mother, (and father), would be an “invidious, irrational, unfair” discrimination contrary to Article 40.1. He considered that the position of the genetic parents in this case was to be recognised on the basis of equality rights as guaranteed under the Constitution. However, the issue of the alleged discriminatory effect of the statutes must primarily be seen through the prism of the Constitutional jurisprudence of the courts.
55. The starting point of the High Court judge’s reasoning on this question was the High Court judgment in S v. S [1983] I.R. p.67. The case concerned the long established irrebutable presumption of paternity based on marriage to the mother of a child. The question was whether this presumption should continue to subsist when the question of paternity is required to be established as a necessary aspect of the administration of justice. In the High Court, O’Hanlon J. held that the presumption had not survived the adoption of the 1937 Constitution. On this Abbott J. commented:
57. In seeking to emphasise the “neutral character” of the statutory scheme, the counsel for the amici curiae submits that parturition can no longer be the exclusive proof of motherhood which protects the status and role of mothers, their relationships with their children, and affords protection to children by legal recognition of that relationship. It is said that this conclusion is both supported and required by the constitutional principle of equality deriving from article 40.1 of the Constitution.
58. It is stating the obvious to point out that, in this context “differences in capacity” between mothers and fathers may be of “physical capacity” if not of “social function”. Fatherhood is achieved by a genetic process. In motherhood, there must be, at least as technology and science currently stands, both a genetic, and a gestational process.
59. Counsel for the amici curiae contends that, in the case of an act of the Oireachtas which evinces no intention to discriminate between persons to whom that statute applies, such discrimination cannot be introduced by the administration of that act (Purcell v Attorney General [1995] 3 IR 287). But as outlined earlier, such an intent is, in fact, discernable from the scheme of the legislation, by virtue of the specific, identified role and attributes of motherhood to be found in the statutes referred to earlier. The Constitution can not always provide for perfectly equal treatment between all citizens. It must, on occasion, have regard to inherent differences of physical and moral capacity and of social function. The judgment of this Court in MD (a minor) v. Ireland [2012] 1 I.R. 697 concerned different criminal liability for young males and females for sexual offences. Certain observations made in that case are nonetheless material, and may be taken as statements of a more general principle, rather than confined to the facts of that case. On these, Denham C.J. pointed out:
61. The judgment in S v. S now relied on by analogy had a powerful policy dimension, that is, the administration of justice in the courts. It was in the interests of justice that paternity should be established as a matter of certainty. O’Hanlon J. had to decide whether paternity should be determined by the presumption arising from marriage to the mother. But at the level of constitutional principle this case hinges on the distinct, and not analogous, roles of fathers and mothers in procreation.
62. I am unable to accept, therefore, that the “paternity presumption”, which was held to constitute invidious discrimination in the case of S v. S, applies in the same way in the instant case. It would not be to compare like with like. An over-rigid but not always apt analogy can lead to an incorrect conclusion in law. The fact that the roles of men and women in child-bearing are obviously distinct means that one cannot simply take a principle applicable to one situation and apply it in another quite different context. In law, as in science, history and logic, analogies can be deceptive. This case is no exception.
Is There an Invidious Discrimination?
63. That Article 40 cannot be a guarantee of absolute equality was emphasised in the recent judgment of this Court in Fleming v. Ireland [2013] IEHC 2. Necessary differentiation can inevitably arise by reason of distinct human attributes. In analysing discrimination, it is necessary to enquire whether the distinction which a law makes between citizens is rational; that is, can it be rationally justified? Among the categories of potential differentiation calling for close scrutiny are race, religion, gender, or nationality. But, as Denham C.J. pointed out in MD, a distinction based on gender may be so closely related to the very nature of gender itself that it is justified. Can it be said the existence of the “mater semper” principle “invidiously” discriminate against the genetic parents?
64. A court must enquire whether the application of the law in question has a discriminatory intent. The fact that a law has an “impact” on a person coming within a particular category does not per se indicate invidious discrimination. The question is, rather, whether the provision has a discriminatory effect under one of the headings where objection might legitimately be raised? In Gilligan v. Ireland [2013] IESC 1 the following observation is made:
66. The “mater semper” principle seeks to achieve certainty. Were it dis-applied what other criteria would be adopted in applying the legislation as it now stands? Would the principle be replaced in an individual case by genetic criteria which might, in fact, arise in the range of very variable circumstances described earlier, and where many couples who enter into surrogacy arrangements would not, in fact, come within the “genetic test”? Such a procedure would of course require DNA or blood evidence to be provided on each registration. Would this evidence always be available to the commissioning parents from a surrogate? And should a “genes based” application of the statutes apply in the case of every birth mother henceforth, even though, currently, the vast majority of birth mothers are also the genetic mother? Even raising these questions shows that what would be required would be substantial amending legislation. The argument must be seen as contingent on an interpretation that suits a very small category of persons, even within the realm of surrogacy parents. As the legislation now stands, the dis-application of the mater semper principle would lead, inevitably, to the result that the twins would have not one, but two mothers, that is to say, the birth mother and the genetic mother. Such a consequence would create uncertainty. The law leans against interpretations which create uncertainty or ambiguity. In situations where some uncertainty lies on both sides of a question, a court should lean towards the interpretation favouring greater certainty. In summary, therefore, I am not convinced that there is an “equivalence” between the establishment of paternity, such as arose in S v. S, and the establishment of maternity.
The order proposed - Vindicating the Children’s Rights
67. I differ from my colleagues in the majority in that, in my opinion, a number of steps could be taken further to secure the constitutional and legal position of the first- and second-named applicants. The evidence in the High Court was to effect that the third-and fourth-named applicants had, for their own reasons, chosen not to pursue any other legal or administrative remedies, such as either adoption or a guardianship application. It has not, in fact, been suggested that there would be any obstacle to pursuing either course. Were the children adopted, they, and their genetic parents, would, for all purposes, be regarded as a constitutional family. The procedure would ensure the full lawful transfer of all parental rights from the surrogate mother to the third and fourth applicants, and confer on them and the children, all the status of such a constitutional family. Guardianship and adoption are, therefore, available remedies which apparently have not been fully explored, still less exhausted.
68. The power of a court to act on the basis of its inherent jurisdiction must be exercised sparingly and only in exceptional cases which are not addressed by statute. In my view, this is such an exceptional case. I would have been disposed to remit the matter to the High Court to determine whether, in accordance with its inherent jurisdiction, and in vindication of the children’s rights to be reared and educated in a family unit, and in order to eliminate the risk of any other adverse legal consequence of their present uncertain status, the third and fourth-named applicants should first be appointed as the twins legal guardians, as a preliminary step to adoption. I am not convinced that it would be appropriate to appoint guardians by an order under s.6A of the Guardianship of Infants Act, 1964, which addresses guardianship generally by statute. That provision would allow for the appointment of an unmarried father as the guardian of a child. Section 8 of the 1964 Act allows the appointment of “any person” as a guardian, but where a child has no guardian. But the twins have one parent who is their biological father, and who can be their legal guardian. The 1964 Act does not, however, give an express power to appoint the fourth-named applicant (the genetic mother) as a guardian of the twins. Where the terms of a statute are fully clear, they cannot be construed otherwise. But the statute does not address a situation such as this one. The power of the courts should be sufficiently ample to vindicate the rights of children which arise under the Constitution (DG v. Eastern Health Board [1997] 3 I.R. 611). MR and DR do have constitutional rights to be parented, and to be reared and educated where possible, in a family unit. They have, at minimum, a clear interest in having their identities and status established in law. But their rights and interests must be balanced against the broader rights of others, the public at large, and both adults and children, all of which are engaged here. These broader considerations militate against a resolution of the case which would extend the recognition of the twins’ rights at the cost of the right of the State to regulate matters in the public interest, or the creation of uncertainty where it is unnecessary. No legislative intention precluding reliance on inherent jurisdiction appears in the 1964 Guardianship of Infants Act or its amendments. The twins should, in my view, be entitled to enjoy rights on the same basis as other children. The legitimate State interest in the policy questions identified earlier in this judgment may be protected by supervision and review by the High Court in this exceptional, indeed unique, case.
The Requirement for Legislation
69. I would make two final observations which are necessarily obiter dicta. This appeal was unique in that, between the time of the High Court order and this appeal, the then Minister for Justice produced a draft Bill which was placed before the Oireachtas, inter alia, addressing surrogacy (see General Scheme of Children and Family Relationships Bill, 2014). These questions should not be put “on hold”. Some of the issues which arose in this case will, in some other guise, arise again soon. Science does not stand still, especially in exploring the frontiers of human existence by use of assisted human reproduction. The human situation in this case, and others, renders it incumbent on the legislature to attempt to address these questions.
Rights Under the ECHR
70. I would also observe that the submissions of the amici curiae addressed a range of ECHR judgments The Court’s attention was drawn to judgments on surrogacy questions pending in the ECtHR. Subsequent to this appeal, that court pronounced judgment in three cases on the subject, vis. Mennesson v. France 651952/11, Labasse v. France 65941/11 and D and R v. Belgium 29176/13). While the facts of the Belgian case differ from those in this appeal, each judgment distinguishes between the interests of commissioning parents and the rights of children born of surrogacy arrangements. Each judgment emphasises the rights of member states to provide in law for the regulation of surrogacy.
71. In the two French cases, the relevant sections of the ECtHR held that there was a wide margin of appreciation, whereby member states might properly regulate the issue, even by laws precluding surrogacy agreements entirely. Both judgments bear some striking resemblances to the circumstances of this appeal. The issue was whether the French authorities could, under French law, register the births of twins who had been born arising from a surrogacy arrangement made in the United States and where the commissioning parents had been recognised in law there as being the parents of the children. Here, the issue is fundamentally one of statutory interpretation. However, the judgments resonate to a degree with the situation in the instant appeal, in addressing the interests of commissioning parents in a manner distinct from the rights of children. French law did not even permit surrogate parents to adopt children born of a surrogacy agreement. Such agreements were actually a criminal offence. However applying the “best interest” principle, the ECtHR held that it could not be in a child’s best interest to deprive him or her of a family tie, when the biological reality of that tie was established, and the child and the parent both sought recognition of that link. Thus, the ECtHR held that, by completely preventing the recognition and establishment of children’s legal relationships with their biological father, the French State had overstepped the permissible margin of appreciation. The ECtHR held that the children’s Article 8 ECHR rights to respect for their family right had thereby been infringed. By way of contrast, however, the Court observed that, subject to the terms of Article 8, there was no prohibition on a member state legislating against surrogacy insofar as such legislation was in accordance with the law, and necessary in a democratic society, in the circumstances outlined in Article 8.2 ECHR.
72. For the reasons outlined therefore I would allow the appeal, and reverse the declarations granted in the High Court, I would however, have remitted the claim to the High Court on the question of appointing O.R. and C.R. as guardians of the first- and second-named applicants, M.R. and D.R..
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 7th day of November, 2014
Introduction:
2. As advised or as may have been demanded by the fertility clinic involved in the process, the parties signed what was headed and described as, a “Surrogacy Agreement”. This was dated the 19th of November, 2007 with Mr. and Mrs. R. being referred to, as the “Commissioning Father” and the “Commissioning Mother” respectively, and collectively as the “Commissioning Couple”, and the notice party as the “Embryo Carrier”. Whilst further reference will be made to this agreement later in the judgment, it is sufficient to say at this point that the essence of its terms required the surrogate to relinquish physical custody of any child to the Commissioning Couple as soon as practicable following birth, who thereon were to become guardians and legal parents of such child. In furtherance of this arrangement the notice party also agreed to renounce any and all rights to custody, guardianship and access and further, to waive any and all other paternal rights, howsoever arising.
3. Every step of the process, which included the following,
2. the manner or method of fertilisation;
3. the implantation of the embryo into the womb of the notice party;
5. the intention that Mr. and Mrs. R. would take the children home with them upon birth, and would thereafter have, to the exclusion of the notice party, sole custody of and responsibility for, their upbringing and welfare; and
6. the role of the surrogate in her future relationship with the children, her sister and with Mr. R.;
4. In almost every respect therefore, this must be regarded as one of the least complicated and most straightforward surrogacy arrangements that could exist. The identity of the donors, two only in number, was known at all times and as stated, were and are married to each other as a heterosexual couple: thus they constitute a family under Irish constitutional law. The involvement of the surrogate, a sister of Mrs. R., was purely altruistic in nature: although she remained married at the time, she had been formally separated from her husband for a period well in excess of ten months pre-birth. In addition, he the husband, has confirmed in a statutory declaration that he is not the father of the children. The roles of all parties, after birth, had been specified, as had the legal consequences of the arrangement, subject of course to the law recognising the legal validity of the agreement entered into. No issue arises regarding the welfare of the children. Each essential step of the process took place within this jurisdiction where also, all of the parties are domiciled and permanently resident: therefore every aspect of what occurred is governed purely by domestic law. Finally, such arrangement has been and remains wholly consensual. In all it was a community of interests.
5. Consequently, none of the difficulties which can arise, do so in this case; such difficulties are numerous, some foreseeable but many others not: and when present should not be underestimated. See Legal Problems with International Surrogacy Arrangements (Michael Nicholls Q.C.) for a useful summary in this regard. And yet of course even in this most accommodating situation, the case gives rise to seriously complicated issues of a social, ethical, moral, philosophical and legal nature. Mercifully for me, my analysis is essentially approached solely from the point of view of legal principle.
6. As required by law, particulars of the births were furnished to an tArd- Chláraitheoir, the first named respondent: these showed Mr. R. as the father and the notice party as the mother. Such particulars given on the female side, were without prejudice to the views of all concerned in the arrangement, that Mrs. R., and not the surrogate, should be registered as the childrens’ mother. An application to that end was made on the 14th September, 2010. It was claimed that the entry recorded on the 19th October, 2008 was erroneous in fact and should be corrected under s. 63 of the Civil Registration Act 2004 (“the 2004 Act”); in support of such application, evidence was tendered which established that Mrs. R. was the sole donor on the maternal side of the genetic material, which together with that of her husband, undoubtedly gave rise to the birth of these children. This fact has never been in dispute: on the contrary, it has always been so accepted by the Registration Authority. On receipt of this application an tArd-Chláraitheoir obtained legal advice as to how the request should be dealt with. He was informed by senior counsel that the rule, mater semper certa est (or “mater semper”), applied and therefore the only person which the law could recognise as the mother was the notice party, being the birth mother. Consequently, on the 14th June, 2011 he rejected the application to alter the name of the mother on the register of births. Such decision was the immediate cause of the institution of these proceedings, which were moved by way of a statutory appeal under s. 60(8) of the 2004 Act.
Reliefs sought: 2) that the refusal to recognise and acknowledge Mr. and Mrs. R. as the parents of the children was unlawful, as it failed to vindicate and protect the constitutional rights of the applicants, as a group, in particular their rights pursuant to the provisions of Articles 34, 40.4.1o, (sic) 40.3.2o and 41 of the Constitution, and
3) that Mrs. R. was entitled to be registered as mother of the children and the register should be corrected to reflect this fact.
8. The respondents/appellants, in objecting to any relief being granted, denied that in refusing to recognise Mrs. R. as the mother, the State had acted in violation of any constitutional rights of the applicants, either individually or collectively. They also asserted the ongoing supremacy of the mater semper rule, by which it was claimed that the birth mother, and no other, was the legal mother of the children. The notice party, and both the Equality Authority and the Human Rights Commission, who with the court’s permission made helpful submissions, supported the position of the applicants for various reasons.
The Medical and Scientific Evidence: [2] Epigenetics is the phenomenon whereby the surrounding environment can control the availability of genes to be converted into proteins by influencing genes to react, or not, to their surrounding environment. However, the Genome determines how susceptible one is to the influence of epigenetics. Epigenetics do not change the Genome or core DNA/genetic structure. During the period of gestation it is the Gestational Mother who creates the environment within which the epigenetics seek to influence the embryo. A Gestational Mother may ‘potentially’ influence the development of a child through epigenetics. Regardless of the identity of the Gestational Mother the Genome, or genetic make up of a child, will not change. At a genetic level the extent of epigenetics is one of influence, not change. It influences the Genome in terms of genes reacting or not in a particular manner. Such influences may be carried through to future generations. However, epigenetic influences during the gestation period are reversible and can be reversed after birth. Although, there are some epigenetic effects that are not reversible. Epigenetic influences are not deterministic or causative, but rather are correlative. In that regard:
[4] The contribution that a Gestational Mother may have to an embryo by way of epigenetics is secondary to the contribution of the Genetic Mother, as any epigenetic influence is secondary to the Genome which in turn dictates how susceptible an embryo may be to the influence of epigenetics. Further:
[6] In response to a question on the prerequisites of motherhood, Prof. Green, stated:
(underline added) The High Court Judgment:
11. It is worthy of note, although not specifically mentioned in the judgment, that epigenetics was not even discussed by the Commission in its Report, as despite ongoing research there was not a sufficient understanding of it at the time, to make such discussion worthwhile.
12. In so far as this was a finding purely of fact, arising from the evidence given,
it is very difficult to see on what sustainable grounds the appellants can succeed in their appeal in this regard or how such a conclusion can be disturbed by this Court. Whether the learned judge was correct as a matter of law in determining maternity for the purposes of the 1987 Act in this manner, is quite a separate and distinct issue.
13. In any event the judgment then proceeded to consider the legal issues by firstly looking at the mater semper maxim which was described as being a “presumption at law and in fact”. Correctly it was pointed out that historically, motherhood could be presumed once parturition had occurred: this followed as no other possible evidence could exist, which might controvert this presumption. The issue which faced the Court however was that if such evidence did exist, as it did in this particular case, could it be lawfully tended within the current legal and constitutional framework? Rejecting the State’s submission that the maxim obtained constitutional status by virtue of Article 40.3.3o of the Constitution and being of the view that the “blood link” was paramount in determining parenthood (Fennelly J. in N. & Ors. v. Health Service Executive & Ors. [2006] 4 IR 374 (“N. v. HSE”) and in J.McD. v. P.L. & Ors [2010] 2 IR 199 (“J. McD.”) (Donor Sperm Case): see also ss. 18(5)(a)(iii) and 30(5)(c) of the Adoption Act 2010), the learned judge then considered how such link could be established or determined in the circumstances before him. In the case of paternity there was but one answer, namely via DNA, being verified by general scientific means or more specifically by a blood test under the 1987 Act. By reference to his earlier conclusion as to the predominant determinism of the genetic material in the foetal cells, the learned judge was of the opinion that such a view justified an approach to maternity disputes, similar to that which applied in the case of paternity issues.
14. That being so the continuous application of the mater semper maxim, as an irrebuttable presumption, was not in his view compatible with fair procedures. Relying on the decision of O’Hanlon J. in S. v. S. [1983] I.R. 68, the judge held that the maxim did not survive the enactment of the Constitution in circumstances where IVF was involved. Accordingly, where an issue arose as to who the mother of a person was, that issue should be resolved at a genetic level and on the required link being established by acceptable evidence, such a person should be so regarded for the purposes of the 2004 Act. This conclusion he pointed out, did not raise considerations regarding the best interests of the child: although if it had, in his view in most if not in all cases, those would be best served by the approach which he had proposed.
15. Having disposed of the major issue in this way, he then considered whether his conclusion should be reviewed by reference to international standards if such existed, in relation to the application of mater semper, as an irrebuttable presumption. The evidence, in his opinion, was not sufficient to justify any such review. Finally, the learned judge saw no reason why Mr. R. would not be appointed legal guardian of the children if necessary and if Mr. and Mrs. R. saw fit, why formal adoption could not take place, with the least possible difficulty.
The Orders Made:
17. If the High Court is correct in making a declaration under the 1987 Act, then that is the end of the appeal. Even though the Minister has not made Regulations under s. 48 of the 1987 Act which would facilitate the re-registration of the births, the clear evidence of an tArd-Chláraitheoir is that, without more, he will act on such a declaration. Consequently in these circumstances Mrs. R. will be registered as the mother of the children and will be so regarded. It seems to be accepted that such a declaration would carry with it, for Mrs. R., all of the rights, duties and responsibilities which enure to a natural mother and correspondingly for the children all the rights of a child so born. Where such children are born in wedlock the added protection of Articles 41 and 42 would follow. In other words neither the fact that Mrs. R. is not the gestational mother or the fact that the notice party is, would retain any relevance in a legal sense: in effect the fact that the gestational mother was a contributor to the growth and development of the children and gave birth to them would again, legally speaking, be of no significance. Nor from the children’s point of view would any importance attach to their particular method of conception or birth. Whether these assumptions accurately represent the consequences of such a declaration, is an issue which was not debated. I will therefore proceed as others have, but without offering any endorsement of such approach. The matter however becomes more complicated if the High Court Judge was wrong in making the s. 35 order which he did. In such circumstances it becomes a critical matter to define or at least to accurately describe what the true questions are on this appeal, in particular when discussing the constitutional issues.
18. The second declaration in and of itself does not state whether its granting is consequential to the s. 35 Declaration or whether it was intended as a stand alone order so as to vindicate and protect “the constitutional rights of the applicants”. Though not spelt out, these rights it must be presumed are based inter alia on Article 40.3.1° and 2° of the Constitution and also on Article 41, which would accord with the argument made. In addition, although Article 42 is not mentioned in the reliefs sought, it would naturally be associated with the provisions of Article 41 in the circumstances arising. Accordingly, in the absence of being expressly nominated I am satisfied that these are the principle constitutional provisions involved which is also consistent with the existing case law which has identified what many of these rights are; unfortunately however, save in the case of J.McD, not in any case involving assisted human reproduction.
What Are the Issues? 2. Whether the maxim mater semper is part of Irish law and if so, at what level in our legal order: if it is, what is its scope and in particular does it apply to the circumstances of this case?
3. Whether arising out of the relationship between Mrs. R. and her children there are rights which exist at a constitutional level? If so, what are these rights, on what basis do they exist and what is the extent of the State’s duty to recognise and vindicate them?
4. Finally, if such rights exist, on what organ of the State should this duty, at least in the first instance, fall to. 20. For the purposes of the discussion which follows on these issues, I wish to make clear what meaning I intend to convey when using terms which frequently arise in this case. Up to the advent of IVF and other forms of assisted human reproduction, there was ever only one male and one female contributor to the entire human reproductive process: that is, from the provision of ovum and sperm, to the creation of the zygote and embryo, to the growth and development of the foetus and to the resulting birth of a child. There was but one mother and one father. There was no possibility of a third party making any contribution whatsoever to this process. Therefore there was a historical meaning to these terms which everybody understood and felt entirely comfortable with. The status of either the parents or the child was of course highly relevant to the issue of legitimacy, but not as to the meaning of these terms. It was considered an act of natural misfortune if either adult could not make his or her particular contribution to this process: such persons were destined to remain childless in the sense of never being a natural mother or a natural father. Consequently, unless the context clearly discloses otherwise, the terms “natural mother” and “natural father” will have their traditional meaning, regardless of both being married to each other or not.
The Statutory Landscape:
Registration of Births:
22. Under s. 1 of the 1880 Act it was the duty of certain identified or identifiable persons (“qualified informants”) to give to the registrar within 42 days of birth, details of the particulars required to be registered (“the required particulars”), concerning such birth, and in the presence of the registrar to sign the register. In order of priority this duty was placed firstly on the father and mother of the child and in default, on the occupier of the house where the child was born, then on each person present at the birth and lastly on the person having charge of the child. The particulars required to be registered were outlined in forms contained, inter alia, in the Third Schedule of the Act. Section 1 has in large measure been reproduced in s. 19 of the 2004 Act as have the relevant parts of the Third Schedule which are now to be found in Part 1 of the First Schedule to that Act. The particulars currently requested, with regard to both mother and father are in substance the same as those required under the previous legislation. Special provision however has always existed in respect of a father who was not married to the child’s mother during the relevant period (para. 29 infra).
23. Under s. 68 of the 2004 Act an entry in the register is evidence of the birth to which it relates, if it was made in accordance with the Act and if signed by the person, being a qualifying informant, who had supplied the required particulars. The details so recorded on such entry may be altered only if permitted by the Act and if carried out in the manner specified. Under s. 63 a clerical error or an error of fact, may be corrected on application being made by any person with an interest in the matter, where the evidence of such error is considered adequate and where it is supported by statutory declaration. A similar power is given where a registrar himself or herself identifies an error of fact in any entry, whether so made by him or not (s. 64 of the 2004 Act). Further, an tArd Chláraitheoir is given authority to conduct such inquiries as he may consider necessary, in order to ascertain inter alia, whether the particulars of any given entry, are “correct and complete”. Power to alter such entry, by way of correction or addition, is then confirmed (s. 65 of the 2004 Act).
24. In general, it is accurate to say that the information which was required to be furnished regarding a birth and the means by which such was obtained and thereafter noted and recorded, had not been legislatively changed, as to content or basic structure, between the 1880 Act and the 2004 Act. In fact, apart from some very few changes the current regime remains very much the same as its predecessor. In neither Act is the word “mother” described, much less authoritatively defined: a situation which remains unaltered, subject to one exception, even when all other Acts which might be read in pari materia with the current provisions, are considered. As pointed out above there was obviously no necessity in 1880 to consider the situation of the mother but matters had changed quite dramatically by 2004, when external assistance in the process of human reproduction had become both well known and at least in theory, easily accessible. On the reasonable assumption that the legislature had kept itself abreast of such developments, an occasion of opportunity thus arose for the Oireachtas, to at least clarify the ongoing operation of the system when recourse to such means had been successfully secured. It did not however, do so. Unfortunate as that may be, this Court must now deal with the current situation in a context deeply rooted in its historical past.
25. There is no doubt but that the legislation passed in 2004, retained many of the provisions which are to be found in the 1880 Act, in particular those referring to and covering the matters above mentioned (para. 22 supra). Therefore even allowing for its stated purpose, namely to update and modernise the system, and despite extending its terms to cover divorce decrees, nullity decrees and the like, the current Act can be construed, where the context is comparable and where the relevant provisions are not evidently dissimilar, in light of the pre-existing law as ordained in the prior Statute.
26. Such approach is well justified as the following passage of the judgment of Murray J. in Crilly v. Farrington [2001] 3 IR 251, at pp. 291 to 292 shows :
27. In addition, where words or expressions have been used previously which are repeated in subsequent provisions, they are liable to be given the same meaning as was formerly attributed to them. For this interpretative approach to apply, such words or expressions must appear in a similar context, operate without obvious differentiation and exist in statutes which can truly be read in pari materia with each other (The State (Sheehan) v. The Government of Ireland) [1987] I.R. 550). This rule will have its application enhanced where such words or phrases have been judicially interpreted or where they have a clear and settled meaning (Cronin v. Youghal Carpets (Yarns) Ltd [1985] I.R. 312). It is similar to the presumption against unclear or ambiguous changes in the law, and is based on the assumption that when employing terms whose meaning is settled and known, or which have been judicially determined, the Oireachtas intends to retain that meaning. If changes were envisaged, particularly those with far-reaching consequences for a settled practice or an established scheme of long standing, it is reasonable to expect that the legislature would have decisively so indicated, and would have done so by the use of words, or expressions or phrases, making that, unambiguously clear.
28. Accordingly, given the historical position, it seems to me that unless a basis can be identified in other provisions of the 2004 Act or by reference to some other legislative intervention, one should accord to the word “mother”, at least presumptively, the meaning which it was always understood to have. This particularly applies in the birth registration context, which is still largely founded in its original setting of the past. This viewpoint remains valid even if there is some slippage from that meaning in today’s common usage of the term. If this approach should be correct as I believe it to be, it will, because of the inescapable consequences which follow, clarify many of the issues in this case but will not be determinative of outcome. This working assumption however, is subject to an examination of the 1987 Act, an exercise which I will come back to later in this judgment.
29. Before continuing further with the discussion on the 2004 Act, I should mention s. 7 of the 1880 Act, (substituted by s. 49 of the 1987 Act), which is briefly alluded to above, whereby the father of an illegitimate child is excused from having to comply with the requirements which otherwise are duly imposed, upon a “qualified informant” (para. 22 supra). In addition, the name of such a person is not to be entered on the register, as father, unless at the joint request of the mother and himself, as verified by their signatures. Similar provisions continue to exist by virtue of s. 22 of the 2004 Act. Finally it should be noted, as also touched upon earlier, that under s. 28 of the 1880 Act, an entry in the register shall not be evidence of a birth unless such entry inter alia is signed by an individual, acting as a qualified informant, who has supplied details of the required particulars to the Registrar. Once again, a similar provision is contained in s. 68 of the 2004 Act (para. 23 supra).
30. The purpose of referring to these provisions again, is not simply to enhance the background context of the discussion but rather is directly related to the judgment of Walsh J. in O’B. v. S. [1984] I.R. 316, (“O’B.v.S”), where the learned judge expressed the view that by reason of ss. 1, 7 and 28 of the 1880 Act, the maxim mater semper certa est became part of Irish law, an issue which is specifically dealt with at paras. 83 - 87 of this judgment.
The Effect of the Birth Entry: 32. The reference in that passage to the register being “a snap shot” of matters on a particular day and other comments to similar effect, should be understood in the context of the precise entry which was central to that case and as the law then was. The entry related to the “sex” of the newborn, with the required notation namely whether “Male or Female”, being ascertained by reference to the external genetalia which of course are observable on sight. Certainty in the result, to a high level of probability justified this historical approach, even if events or circumstances, subsequently arising or discovered, proved it unsuitable for a small number of people. In light of that decision, and given that the notice of appeal was withdrawn, it remains a matter of concern to me, (having delivered the judgment), that the responsive steps evidently required have yet to be finalised. In any event, the significance of the register, with regard to other entries, such as that of “Mother” or “Father” may be altogether more far reaching than simply a snap-shot of events on a particular day: this not only from a legal view point but also from a personal, reputational and social perspective. Therefore, in any assessment of the consequences of a particular entry, the purpose of its requirement must be considered as a matter of real importance.
Legitimacy/Declaration of Parentage: The Respective Position of the Parties:
34. The State’s foremost answer, which in my view even at its highest point is a surprisingly narrow one, is to say that the birth mother has achieved constitutional status, as “mother”, by virtue of Article 40.3.3o thereof: as a result, in every Act of the Oireachtas and rule of law (irrebuttable or otherwise) the word “mother” must be given the same meaning so as to achieve constitutional harmony. Accordingly, the appellants argue that in this way, mater semper is reflected in the Constitution. They further say that in any event this maxim has long been accepted as part of Irish law (O’B. v. S.). Finally based on the argument as outlined, it is denied that the 1987 Act could or did, have any adverse effect on this principle. It therefore follows they argue, that the “blood link” is not determinative of motherhood and in so holding the trial judge was seriously in error.
The Status of Children Act 1987:
36. In order to achieve its purpose it was necessary to amend the law relating to legitimacy, guardianship of infants and maintenance of spouses and children: as it was in respect of property rights, both inter vivos and on succession. The Act then, in Parts VI and VII dealt with the issue of parentage and in Part VIII, partly abolished certain presumptions and otherwise clarified how those still surviving, should in future be applied. Finally, it empowered the relevant Minister to make regulations which would give effect to a declaration of parentage, within the system of birth registration. Most regrettably no such regulations have ever been made.
37. At the outset, the Act declared that unless a contrary intention appears, the legal relationship between every person and his or her father and mother should be determined, for the purposes of any subsequent Act of the Oireachtas, without regard to whether his or her parents were or had been married to each other (s. 3). The statutory rule, under the Legitimacy Act 1931 (“the 1931 Act”) (s. 1(2) thereof), which precluded the legitimisation of a child, where his father and mother could not legally have been married to each other within ten months preceding birth, was abolished. Amendments were then carried through to the specific areas of legislation which had been referenced earlier in the title (para. 36 supra). Whilst it is not necessary to consider in any great depth the scope of these changes, it can be said however, that such has resulted in a major and significant shift, in removing, or at least in substantially mitigating, the legislative stigma and consequential disability which the status of illegitimacy sought to sustain, and did so, cruelly, for so many years.
38. Of particular interest to this case, is as I have said, Parts VI and VII of the 1987 Act and also but to a somewhat lesser extent, Part VIII. In looking at these provisions it should be noted that the description of both “father” and “mother” is not particularly instructive: “father” includes a male adopter, but save for giving him a right to apply regarding issues of guardianship, custody and access (s. 6A and s. 11(4) of the 1964 Act as inserted by the 1987 Act) a non-married father is not recognised as the “father” of his child, for any other purpose of the Act. A “mother” includes a female adopter with the word “parent” meaning a father or mother as so defined.
39. As the provisions of the 1987 Act show, a court may grant to an applicant, a declaration that the person named in the application is his or her father or mother or that both are his or her parents, as the case may be. Such a declaration, to be established on the balance of probabilities, binds the parties to the proceedings and all persons claiming through them, and where the Attorney General is a party, also binds the State. This jurisdiction is, in addition to any other jurisdiction by which such a declaration may be obtained. Where the issue arises in civil proceedings the court may give a direction for the taking and for the use of blood tests, for the purpose of assisting the court in determining whether the named individual is or is not the parent as alleged (s. 38(1)). The blood sample so taken is tested “with the object of ascertaining inheritable characteristics” (s. 37). The presence or absence of such characteristics is found by examining the genetic structure or DNA in the blood of each subject person. The individual who is given charge of this process is required to make a report to the court in which by reference to the results he is asked to state whether, the person in question is excluded from being a parent, or if not so excluded, the value of such results in assisting the court to determine parentage. Where the result discloses no “inheritable characteristics”, a definitive finding would follow but the converse is not necessarily the case as there would remain the possibility of mutation or of siblings or close relatives being involved. However, where such complications do not arise, DNA testing, according to the evidence in the High Court, determines the probability of parentage to a level of about 99.99%.
40. It is in my view beyond argument but that the 1987 Act utilises, as the basis for determining parentage the DNA link, or as used in the High Court Judgment as a proxy, the blood link. The Act, for this purpose, makes no distinction between married or single people or males or females. Insofar as paternity is concerned, no difficulties arise at the level of principle: therefore subject to what is subsequently stated, this matter does not require any further elaboration, at least within the facts of this case. The real difficulty is on the maternal side.
41. As above stated (para. 33) the respondents to this appeal make the point, which is obviously open on the wording of the 1987 Act, that as a result of the provisions earlier noted, issues of maternity should be determined in like manner to issues of paternity. They rely on the statutory direction of searching for shared “inheritable characteristics” to this end (ss. 37 - 40 of the Act). This submission in my view, requires careful consideration and is a troublesome one to satisfactorily resolve.
42. The Act does not, in its relevant terms, either expressly or by implication, confine itself to situations, such as where a newborn has been wrongly positioned postnatally; or to circumstances of mistaken identity or such like mishaps: or to vexatious or fraudulent claims. It must therefore be taken in my view to have general application, which is further evidenced by the fact that any person, other than an adopted person, whether born in the State or not, may apply for or may by his next friend seek, such a declaration. It applies irrespective of what detail may have been entered in the birth register and also whether the suspected mother or father is dead or alive. Moreover, it does not differentiate between different methods of conception.
43. If the true version of the Act be that as contended for by the appellants, namely that in a divisible situation it expressly excludes the genetic mother from its provisions, such would dramatically restrict the number of people within its range, even by reference solely to the maternal side. Where the birth mother is known and if she only is to be regarded as the mother, it would be an entirely futile process to engage with any DNA investigation. Likewise, where she is not known, as the result of any such investigation whatever it might be, could not of itself establish the fact that it was she who gave birth. Again let us take the situation where there is no evidence of parturition but where a person is notoriously known to be or even notoriously suspected of being the mother in question. If the DNA link is to be disowned or disregarded, the person who wishes to establish parentage in such circumstances could never avail of the statutory provisions: whilst on the other hand, the birth mother who refuses to acknowledge her role, could by such denial or even by mere silence, avoid all responsibility for her offspring and otherwise deprive such person of deeply valued relationship rights, including those of succession. These difficulties are in addition to the further problem identified in I.O’T. v. B. & Ors [1998] 2 I.R. 321, where the Court agreed with the following statement of Keane J. at p. 376 of his judgment: “…the Oireachtas has erected a barrier to the obtaining of a declaration under s. 35 where the applicant cannot identify the putative parent or parents in respect of whom the declaration was sought.”
44. Quite evidently therefore if such be the correct interpretation, Mrs. R. cannot avail of the 1987 Act and although undoubtedly the person who gave birth, neither could it be of value to the notice party. Whilst in her case the State might presumably say that such recourse is not necessary, that would be to entirely miss the point. Furthermore, and of particular significance however is the fact that in this case the children would also be deprived of its provision(s).
45. Unfortunately from the respondents point of view however, these difficulties of themselves, cannot be decisive in resolving the central issue on this aspect of the appeal, which is in deciding on the meaning of the word “mother” for the purpose of the 1987 Act. In reality this truly is the net point and is clearly one of statutory interpretation. In this context the Act must be viewed in its entirety including the purpose of its enactment; further the mischief which it sought to address, one deeply embedded in historical times, must also be considered. But first it would be instructive to have a brief overview of the Report on Illegitimacy (“the Report”) published by the Law Reform Commission (“the Commission”) in 1982 (LRC 4-1982) and secondly, given the subject matter of the judgment and the proximity of its delivery to the enactment of the 1987 Act, to analyse the significance of the decision in O.B. v. S. [1984] I.R. 316.
Report on Illegitimacy:
47. Having carried out an extensive review of what the existing law was in this and in several other jurisdictions and what the consequences of its application were, across a whole range of areas for those which the law regarded as illegitimate, and also for others associated by relationship, such as parents and legitimate siblings, the Report headlined its core position and key view as being that “ … as far as the rights of children are concerned, it is unjust for the law to distinguish between children on the basis of the marital status of their parents” (para. 193). It immediately continued:
48. In the exhaustive discussion and analysis which followed, the Commission then considered how best changes may be effected to implement this intrinsic value. As stated, areas such as maintenance, guardianship, custody and access, property and succession rights were all dealt with, as was the prohibition contained in s. 1(2) of the 1931 Act (para. 37 supra). In addition, the report having identified as an integral part of this exercise, the importance of parentage and of parental relationship, went on to discuss how the law and the legal system might provide for the obtaining of such a declaration, in a way which would be less cumbersome, more straightforward and result in greater certainty than that existing, as well as putting in place attendant safeguards so that false and malicious claims could be identified and rejected. An important consideration in this regard was of course that of evidential proof.
49. At para. 203 of the Report the Commission stated:
50. In paras. 250 to 272, the Report dealt with “Declarations of Parenthood”. Under that heading it considered,
(ii) whether the mother or father should be compelled to identify the other party to the relationship which gave rise to the birth of the child,
(iii)whether there should be a time limit for the making of such an application,
(iv)what court should have jurisdiction to grant such a declaration,
(v) what range of people should such a declaration be binding on, and finally
(vi)what should the effects of such an order be. 51. In its view the use of blood tests would constitute a very useful evidential tool as to paternity. This is because there are certain properties of blood components which are inheritable, detectable and varied: in that way they act as genetic masters and thus comprise “the most useful tool in solving parentage problems”. As scientific information then stood, the Commission rightly pointed out that blood tests could definitively exclude certain individuals from being a possible father of a particular child but that an affirmative declaration of parenthood so based, could not be made to the same level of probability. Notwithstanding this limitation however, it was in the Commission’s view desirable that such tests “should be capable of being availed of whenever they are likely to throw light on the question” (para. 16): this phrase was based on Lee, “Current Status of Paternity Testing”, (1975) 9 Family L.Q. 615 at p. 616. As to the process by which a blood sample should be taken, analysed and reported on, the Commission deferred making any proposals in this regard, suggesting instead that the relevant Minister should make the appropriate regulations to cover such matters.
52. Of particular significance was the following brief but potentially decisive paragraph, in considering the ambit of the Report’s intended reach: in particular as to the use of blood tests. At para. 206 it said:
53. Having carefully scrutinised the entirety of the Report I am driven to the conclusion that, save for its specific reference to artificial insemination (next mentioned), the Commission did not intend nor did it address the situation of the instant case where there are divisible providers, as to the genetic material on the one hand and as to the gestational input on the other. Quite evidently the Oireachtas was not bound by the Report and had both the capacity and power, to deal with the instant type of situation if it saw fit to do so, in either the 1987 Act or indeed elsewhere. The question which I will revert to, is whether, despite the fact that the relevant statutory provisions ex facie apply equally to both male and female, the latter in a unitary sense, did the legislature intend, or more accurately do the enacted provisions cover, the distinction which is at the heart of this case.
54. Early in the Report, under the heading of “Artificial Insemination”, the Commission identified two situations of such assistance and commented upon both (paras. 99 to 108): beyond that it made no further reference to this topic. The first instance was where the husband’s sperm is used (artificial insemination by husband: “AIH”) with the second being where a third party donor is involved (artificial insemination by donor: “AID”). It points out that, as of the date of the report, the status of a child conceived by AIH is the same as a child conceived by ordinary means. If the marriage is valid, the child will be legitimate: if void, illegitimate; and if voidable and so declared, will retrospectively be illegitimate. On the other hand a child born by AID is illegitimate, because such a child is not considered to be the child of the union between husband and the wife.
55. Based on this analysis no particular difficulty could be seen where the husband’s sperm was used, as the situation was quite clear cut. Where the donor was not the husband however, matters were much more complicated. In that scenario it was proposed, via the enactment of new legislative measures that the law would recognise the existence of a “relationship” between donor and child but none as between the mother’s husband and the child. What precisely such a “relationship” would involve, was not detailed but for what was described as “obvious reasons”, would not include for the donor, rights of guardianship or succession or rights to the estate of the child: who likewise should not be entitled to succeed to the donor’s estate. Perhaps the explanation for the lack of detail was the Commission’s view that whatever the legal consequences of such relationship might be, the same were unlikely to give rise to issues in practice as normally the donor and the child would not be known to each other.
56. Of some significance for the scope of the Report was the Commission’s decision not to further engage with the legal implications of artificial insemination. In so deciding it stated that this entire area, raises important moral and social issues which are more properly matters to be determined by the legislature. Whilst identifying a number of problems which could arise where artificial assistance was availed of, the Report expressly declined to involve itself or otherwise intervene in this matter.
57. Two conclusions can be drawn from the above. The first is that whatever discussion took place within the Report about third party assistance in the reproductive process, it was confined to the contributor being on the paternal side and not otherwise. The second which quite evidently follows from the first, is that it did not conceive of a situation where there might be diversity between the genetic and gestational mother. Hence it cannot be argued that in making its recommendations, the Report provided for or even envisaged the type of problem which exists in this case, much less in suggesting a legal method by which the question of who the mother is, in such a scenario, might be resolved.
The Decision in O’B v. S. [1984] I.R. 316:
59. The claim, for its success, depended on establishing that the term “issue” in s. 67 of the Succession Act 1965 (“the 1965 Act”) included illegitimate offspring: if the daughter failed in this regard then in accordance with the provisions of s. 69 of the Act, the deceased would have been regarded as having died without leaving spouse nor issue nor parent: his estate in such circumstances would be distributed between his brother and sister in equal shares, who in the events which happened were in fact the plaintiffs in the action.
60. On the statutory interpretation point, the Court whilst acknowledging that the term “issue”, in “normal talk”, could refer to those born either in or out of wedlock, approached the matter by asking what did the Oireachtas mean by this term in the context of intestate succession. The Court had no doubt but that the legislature was fully aware of the distinction, which existed pre-1965, between the succession rights of those who were and those who were not legitimate, pointing out that the Act expressly included within the meaning of the term, those children who were legitimised under the Legitimacy Act 1931, and those who were adopted under the Adoption Act 1952, both Acts as later amended. Subject to these two exceptions however, and noting the absence of any provision to include children born outside of marriage, the inevitable conclusion in the court’s view had to be that the long established meaning of the word in the law of succession, was what the Oireachtas solely intended by the use of the term in the 1965 Act. As that meaning referred only to issue born within marriage, the defendant could not succeed on this point. The Court then went on to consider the constitutional argument.
61. The first argument made was based on Article 43.1.2o of the Constitution which reads: “The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property”. It was submitted that “the right”, so described, “…to inherit property” had to vest at all times in some individual: in this case because of her relationship with the deceased that person was the defendant. Given however the Court’s ruling as to the true meaning of the term “issue”, the effect of s. 67 of the 1965 Act was to prevent her from inheriting her father’s property and therefore its provisions were incompatible with the guarantee contained in the provision as quoted.
62. This submission was rejected on the basis that the true meaning of such a guarantee was that the State would pass no law attempting to abolish the general right to inherit property, which by previous disposition had been bequeathed to some individual. As this clearly could not result from an intestacy, this provision of the Constitution was not applicable. Such finding in the court’s view, was also a complete answer to the further claim that the failure of the State to make provision whereby an illegitimate daughter could succeed to her father’s estate on an intestacy, was a failure to vindicate her property rights, under Article 40.3.2o of the Constitution.
63. The substantive constitutional argument however was one based on Article 40.1 of the Constitution. That reads:
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” 64. The Court had no doubt but that a person born outside of marriage, is as a human being, equal to a person born within marriage: the equality guaranteed by that Article provides that all human persons, by virtue of their human self, are held equal before the law. That being so it was therefore necessary to consider the proviso also contained within that Article.
65. At the outset the Court agreed that a person so born could not be regarded, by reference to her illegitimacy, as having any difference of capacity, physical or moral, or of social function. Accordingly justification for the differentiation in the defendant’s treatment could not be found within the proviso: but such was not determinative of the ultimate outcome. If the distinction could be supported by reference to any other Article of the Constitution, then, by reading the provisions as a whole, the disputed statutory provision or rule of law could not be described as being unjust, unreasonable or arbitrary: in short it could not be considered as constituting “invidious discrimination”, a phrase, borrowed from the jurisprudence of the US Constitution and first used in this jurisdiction by O’Dalaigh C.J. in O’Brien v. Keogh [1972] I.R. 144 at p. 156.
66. Recourse was therefore had to Article 41 of the Constitution so as to find such justification: in particular Article 41.1.2o in which the State guarantees to protect the family in its constitution and authority. One can add Article 41.3.1o which guards with special care the institution of marriage upon which the family is founded. On such basis, the Court held that the duty to protect the institution of marriage justified the difference in treatment, in that it was open to the Oireachtas to pass legislation regarding succession rights, which was designed to strengthen the position of the family and to place members thereof in a more favourable, or as actually stated, in a “more superior position”, than non members. It expressed no view on what limitations if any, these constitutional provisions might impose on the Oireachtas if it was minded to abrogate this discrimination. Likewise it did not speculate on what the outcome of the equality argument might have been if Article 41 of the Constitution did not exist or at least did not do so, in the form in which it does.
Reason for such Reviews:
68. Because of their nature, it can confidently be taken that the Oireachtas was fully familiar with both the Report and the decision in O’B. v. S., when it decided to enact the 1987 Act. Accordingly neither that contextual setting or background can be disregarded when the relevant provisions of the Act, in particular those within Parts VI and VII thereof, fall to be interpreted.
The Object, Scope and Application of the 1987 Act:
70. So the question is whether the relevant provisions of the 1987 Act provide, that where fertilisation and gestation are divisible, the person who donates the genetic material is the mother of the resulting child, if not for all legal purposes then at least, for birth registration purposes? If the answer to this is yes, the role of the gestational mother must be disregarded as it is impossible to countenance, in the statutory scheme which exists, the listing of two females as a child’s mother. Therefore the issue is whether the Oireachtas in 1987 intended or provided for this, or put slightly differently whether such a result is ascertainable from the text and purpose of the Act as a whole when considered in the contextual setting of its enactment?
71. I think it is uncontroversial to say that the 1987 Act drew heavily from the Report of the Law Reform Commission, which as noted, make certain recommendations for the abolition of illegitimacy in our laws. The raison d’etre of the Act was to equalise the rights of all children, so that State laws would no longer discriminate in the manner which they had for centuries. This discrimination was singular in source: it resulted from the status of a child’s parents which in turn was determined solely by reference to marriage. If married, the offspring born as a result had a status of legitimacy: just as legitimacy was a status however, so also was illegitimacy. Belonging to which one was the difference in being treated as an insider or discarded as an outsider. So much depended on those vows, not only from a legal perspective but also from a social perspective: reputation, standing in society, admission into a vocation, profession, or social organisation, were but some of its effects. Being persuaded that such condition was unjust to innocent children and being satisfied that there was no constitutional impediment in so doing, the Commission reported as it did. Having resolved that the institutions of the State should no longer support such injustice, the Oireachtas considered and then responded. So from 1987 onwards the marital status of a child’s parents would be irrelevant in determining his relationship with them and all other relationships would be determined accordingly. In effect, illegitimacy was removed from our public laws.
72. That was the defining principle of the 1987 Act. Given the diverse pieces of legislation which manifested consequences of illegitimacy, the Oireachtas, with detailed measures, dealt with specific areas such as those mentioned above. In addition it sought to provide a legal mechanism whereby parentage could be ascertained. All of these provisions were made in furtherance of the objectives which the Act sought to pursue.
73. As part of the overall scheme, the Act addressed various presumptions and other evidential matters, which in this area of the law had been routinely applied by custom and convention, for many years (ss. 44 and 46 of the 1987 Act). These sections provide as follows:-
(ii) that, in respect of a child born to a wife during the currency of a marriage or within ten months after its termination for whatever reason, the husband, by presumption, should be regarded as the father unless on the balance of probabilities the contrary was established,
(iii)that where a wife who was formally separated, gave birth more than ten months after the judicial separation or the separation deed took effect as the case may be, the husband, by presumption, should not be regarded as the father, unless on the balance of probabilities, the contrary was established,
(iv)that notwithstanding the circumstances referred to at subpara. (2) of this para, a person whose name was entered as the father of the child on the birth register, should be presumed to be the father, unless on the balance of probabilities, the contrary was established.
74. Quite evidently the Oireachtas did not believe that the changes effected in respect of these evidential matters, were in themselves sufficient to bring the required degree of clarity and certainty where parentage was in dispute. Hence the enactment of Parts VI and VII to the Act. As these provisions have been referred to earlier (paras. 38 to 40 supra) it is unnecessary to repeat them in any detail. It is sufficient to recall that the court, when faced with a disputed parentage suit, could issue a direction for the use of blood tests to assist with its decision. The purpose of such a test was to ascertain the “inheritable characteristics” which could be identified from the sample. With such information it would be possible, as scientific knowledge then existed, to affirmatively discount an individual as a potential parent but it would not have been possible to unconditionally affirm parentage. This uncertainty stemmed from the possibility of mutation and also from the complications which could arise if siblings or other near relatives were involved. In any event it is clear, that the legislature considered that the use of such evidence, certainly on occasion, could be of essential significance, in determining who the parent was.
75. The Act, in this regard, made no distinction whatsoever between male and female. As inheritable characteristics can be identified only from a genetic donor, it follows according to the respondents, that maternity as well as paternity, must be determined in this manner.
76. This argument in my view is patently open on the wording of the relevant provisions and its forceful presentation by these parties, is one which is quite obvious to understand. Indeed, at one level, it is unanswerable. Without distinction as to sex, the Act seeks to ascertain inheritable characteristics from a blood test. Those characteristics are to be found only in genetic material. Therefore in its intended utility that test can apply and be applied with equal force to both male and female. Hence, the submission as made. Notwithstanding how attractive this argument is, however, the conclusion as urged is not an end in itself, and in my view is not determinative of this issue.
77. Prior to the advent of IVF in the late 1970s it was clear that if one could establish the identity of the ovum provider, then one would also know with certainty that such person was the only female entity involved in the reproductive process. Likewise if one could identify the birth mother a similar result would follow. But as science developed in this area thereby giving rise to multiple forms of assistance inter alia on the maternal side, such a deduction could no longer be assumed. Of course in the absence of a third party being involved, the historical understanding prevails and will continue to do so. Therefore in the vast majority of cases the type of difficulty which exists in the instant case, will not arise. But with such technical and medical advances, the traditional conclusion cannot be assumed, where reproductive assistance has been involved.
78. The ultimate question of interpretation therefore is whether by identifying the blood sample as the primary basis for establishing parentage, without differentiating between male and female, did the Oireachtas intend in 1987 to cover a situation like the instant case where the genetic and birth mother are different people? In my view, given the historical and traditional understanding of the reproductive process, the immediate background to this major piece of re-constructive legislation, and in particular, in light of the underlying motivation of the Act, i.e. the abolition of illegitimacy and its legal consequences, it cannot I think be inferred that within the contemplation of the legislature was a situation such as the present one. In view of these and other factors it would have required clear, precise and definitive language to have intended such a dramatic departure from the past understanding of the term mother, and in addition by only making a single and isolated provision to cover such rapidly advancing new scientific circumstances, the Act would have created a void, of enormous proportions. Moreover, if this submission be correct, it would have erased the possibility of the gestational mother ever, in any circumstances, being deemed to be a parent of the child to whom she gave birth. I cannot accept that such far reaching changes were so intended. Consequently despite the neutrality of the relevant provisions, I must conclude for the reasons above outlined, that the 1987 Act had not within its contemplation and therefore does not cover, a divisible situation such as that applying in this case.
79. A review of the legislative provisions in the UK does not assist as part of the interpretive process regarding the 1987 Act. Such provisions however, are of note as demonstrating that which is obvious, namely the highly complex, difficult and interacting interests which have to be considered, and at least dealt with, if not perhaps accommodated, within any established statutory framework. These interests will reflect, inter alia, the value at both a scientific and human level of the advent of assistance for those who otherwise would have to remain childless, the view which a particular national legislature takes, on the form of surrogacy which it permits and the conditions attaching thereto, the role of all contributors to the process involved and, in particular of course, the welfare of the resulting children. Indeed, the original English Act has been amended on three occasions since its introduction in 1969. These changes have become necessary as developments have continued to outrun the provisions then in being. Therefore, even if the Oireachtas intended to do no more than to deal with this subject as an emerging phenomena, one would still have expected to find in the legislation some identifiable expression in that regard. Consequently, I must conclude that as Mrs. R.’s situation was not envisaged by the 1987 Act, no declaration as to parentage was available to her under its provisions.
Mater Semper Certa Est:
81. If, as everyone accepts that the maxim is founded in Roman law, this is the only conceivable meaning it could have. The possibility offered by science in the modern era had multiple centuries still to run. What has happened to bring about the existence of the children in this case, was indeed as the phrase goes, “unimagined and unimaginable” at that time. Whilst I doubt not that brilliance does what it can and genius what it must, nonetheless it is inconceivable that the maxim, either during its creation period or at any time thereafter, had any meaning, understanding or application, different to that which originally attached to it.
82. On the basis of what was only scientifically and humanly possible on the maternal side, it is entirely unsurprising that the maxim grew into a rule, which when called upon to do so, was readily applied by the courts. The fact of who was “mother” was irredeemably demonstrated by parturition. No third party could conceivably take issue with that inevitable truth or assert a contrary claim. As the event of birth is a matter of fact one would have thought that any presumption of motherhood to that end was also one of fact. Indeed I do not understand the necessity of having to position the fact of birth as, or to elevate it to, the station of a presumption, whether rebuttable or irrefutable, or whether one of fact or law: certainly to do so could have no added value in the traditional context. She who gave birth had also to be, she who provided the ovum, she within whom fertilisation took place and she who carried the foetus and gave birth to the child. As so understood, I am comfortable with the maxim if entirely indifferent to its status, whether being founded in law or in fact or being contestable or not. Of some significance however is to determine at what level in our legal system is mater semper part of Irish law, if at all.
83. I know of no Irish case which expressly says that it is part of the common law and none to that effect has been cited to us. The passage relied upon by the appellants in suggesting that it is, comes from the judgment of Lord Simon of Glaisdale at pp. 576 to 577 of the report in the Ampthill Peerage Case [1977] A.C. 547, where it is stated:
84. The only Irish case referred to in this regard is O’B. v. S., previously referred to (paras. 58 to 66 supra), wherein Walsh J. when dealing with an argument based on Marckx v. Belgium [1979] ECHR 330, commented as follows, on the mater semper maxim:
85. In the first instance it must be noted that there is no mention whatsoever in the judgment of the common law being the lawful basis for the rule’s recognition within this jurisdiction, and secondly, that s. 1 of the 1880 Act simply imposes a duty on “qualified informants” to furnish appropriate details of a child’s birth and to sign the relevant register. Whether ss. 7 and 28 of the 1880 Act could have played any part in the statutory recognition of mater semper in Irish law must be seriously doubted. Section 7 dealt with the position of an illegitimate father in the context, inter alia, of being registered on the birth registry as such, while s. 28 required the register to be signed by the person who supplied the required particulars before such entry became evidence of the birth. Section 1 of the Act therefore could be the only possible basis justifying the comments of Walsh J., as that provision allowed any person, (not simply the parents), who was present at the birth or in whose house the birth took place, to also furnish the required particulars to the Registrar. However, it is certainly not clear to me how this section could be viewed in such a way. Finally, and of striking significance is the fact that the presumption is not referred to at all, either by name, form or substance, in any Act from 1880 to 2004, or for that matter since then.
86. Although the European Court of Human Rights (ECtHR) also refers to this maxim as applying in Irish law (Johnston v. Ireland (1986) 9 E.H.R.R. 203 and Kroon & Ors v. The Netherlands (1994) E.H.R.R. 263), it did so in recital form and very much as background to the case, assuming as it only could, its domestic existence. Quite evidently the ECtHR could not declare by its own authority what the common or statute law is within this jurisdiction.
87. Having referred to Dr. Maebh Harding’s Chapter, “Surrogacy in Ireland”, in K. Trimmings & P. Beaumont, International Surrogacy Arrangements: Legal Regulation at the International Level (2013, Hart Publications), in which she contends that the principle, mater semper never formed part of the common law, Clarke J., in his judgment in the instant case at para. 5.8 continues:-
88. In any event the observations of Mr. Justice Walsh and certainly those of Lord Simon of Glaisdale, did no more than acknowledge the undoubted biological reality at the time, that motherhood was established by the fact of birth. Their endorsement of the maxim could in no sense be said to have elevated the presumption to an immutable rule of law either at the factual or legal level; much less that it should be applied for all time and for all purposes, irrespective of the medical and scientific changes which have taken place in the available methods of reproduction since then.
89. The State defendants in this case go much further than even the most favourable view of the decisions last mentioned permit: they seek to have the maxim treated at the highest level possible, namely that with constitutional status. They rely on Article 40.3.3o as the sole basis for this argument. This is rather surprising given the wording of the provision itself and in light of the decision of this Court in Roche v. Roche [2010] 2 IR 321, (“Roche v. Roche”). I have no doubt but that the appellants are fundamentally in error in this regard.
90. That Article of the Constitution reads:-
91. This argument of the State was closed out by the decision in the case of Roche v. Roche where the issue was whether or not frozen embryos, then being held in a fertility clinic for potential future implantation, fell to be protected under that sub-article of the Constitution. The essential scope of that provision in my view was designed to and as a matter of law gave protection only:
(ii) to preserving and protecting the growth and development of the foetus as well as the life of the mother: on rare occasions those interests might require to be balanced: such could only arise for consideration when associated in gestation; quite evidently, without both foetus and mother being integrated or at least linked, one could not adversely affect the other.
92. In many respects this conversation is entirely otiose as in any event it seems to me, that mater semper simply has no application in a situation such as this, where the maternal contributors to the reproductive process are not one and the same person. The maxim, to use a neutral term, was never intended to cover such an eventuality. Where circumstances fall within its original contemplation, I am quite satisfied to see its continuing application, for the situation cannot be otherwise. But where as here, that is not the case, it must be disregarded. To do otherwise is to pursue a line of absurdity and a journey of medical and scientific denial. To disassociate the genetic donor from the child solely on the basis of mater semper is an exercise in delusional contradiction as it disowns her irrefutable contribution to the child’s creation and thus to its very existence.
The Constitutional Position:
94. As the importance or significance of DNA, in the context of assisted reproduction has not arisen for decision or even for discussion in our courts before this case, save for J.McD. v. P.L. & Ors [2010] 2 IR 199 (“J. McD.”) (Donor Sperm Case), reference might usefully be made to the position of natural fathers who are unmarried, as for legal purposes this group is differentiated quite distinctly from their married counterparts: the latter has the full protection of Articles 41 and 42 of the Constitution and of the legal measures taken by the State to implement its obligations thereunder. Reference may also be made to G. v. An Bord Uchtála [1980] I.R. 32, a case where an unmarried mother wished to withdraw her consent to adoption so as to regain custody of her child. Although a number of other cases have been cited such as Northern Area Health Board & Ors. v. An Bord Uchtála [2002] 4 IR 252, none of these add further to the jurisprudence which exists, and in any event almost all, have been decided in the context of their own individual facts.
95. Any discussion on the position of such persons however, can naturally form part of the wider relationship issues between parents and their children. Accordingly, in the first instance I will look at the natural mother and the natural father, both of whom are unmarried, and then to the position of a child born to them, in that unmarried state. The situation of a married couple and their child born in wedlock is markedly different, because of the availability, as I have previously said, of the added protection afforded by virtue of Articles 41 and 42 of the Constitution. I should also state that what immediately follows relates to unassisted reproduction, that is where there are but two parties involved in the ‘natural process’, a phrase which I use only for reference purposes.
96. The Constitution does not, as such, define who a “mother” is, but there are references to such a person in Article 40.3.3° and also to the term “mothers”, in Article 41.2.2° The latter section, having recognised the contribution which “woman” gives to society by her life within the home, pledges the State, by way of endeavour, to ensure that “mothers” should not be forced by economic necessity to work outside the home, to the neglect of their duties within it. It is not altogether clear what this provision means or why there should be such a sharp distinction between the terms used for the purpose of describing the State’s recognition of a ‘woman’s contribution’ on the one hand and its duty of endeavour towards “mothers” on the other. Moreover it should not be assumed that Article 41.2.2 is restricted to females who are married or to families so founded. See O’Flaherty J. in B.L. v. M.L. [1992] 2 I.R. 77 at p. 112. In any event it is not necessary to further explore these provisions in one’s search for the true meaning of the word “mother”, in the context of birth registration. In fact in light of the unsatisfactory wording of Article 41.2.2 and my clear views of Article 40.3.3° (paras 89 to 91 supra), it seems to me that at a constitutional level no definitive assistance is available as to the true meaning of the term “mother”, for the purposes of any issue in this case.
The Natural Mother:
98. The State in pursuance of the guarantees contained in Article 40.3 of the Constitution, has enacted statutory provision in that regard, including the Guardianship of Infants Act 1964, as amended. Under s. 6 of the Act (inserted by s. 11 of the Status of Children Act, 1987), the natural mother shall alone be the guardian of her child, subject only to any order made in favour of the natural father (s. 6A of the Act inserted by s. 12 of the 1987 Act) or to such further or other order as therein provided for.
99. Such a mother however, even if living in a loving and enduring relationship with both child and father, is not considered as part of a family, for the purposes of Article 41 (The Family) or Article 42 (Education) of the Constitution, and neither are the other parties including the child. It seems highly probable therefore that the rights which she has in respect of her child, even those resting at constitutional level are not deserving of the same protection as is available to a married couple in similar circumstances. The rights under these Articles are referred to as being “inalienable and imprescriptible” and as being “antecedent and superior to all positive law”, whereas in Article 40.3, there is no such similar designation with terms such as, “as best as practicable” and “as best it may be”, being used instead. This means at least at a prima facie level, that Article 40.3 rights are neither inalienable or imprescriptable. They can therefore be transferred, lost, abandoned, surrendered or abdicated, and their enjoyment or exercise may be compromised. (I.O’T. v. B. at p.347). Consequently, it seems clear ex facie that the protection afforded by Articles 41 and 42 of the Constitution is at a higher level and is of greater value, than that existing at the Article 40 level.
The Natural Father: The Child:
102. The range of such rights includes the right to be fed and to live, to be sheltered, safeguarded and cared for, to be reared and educated, to have the opportunity of working and of realising, in all essential respects his or her full personality and the right to dignity as an equal human being. In addition, there is the right to have decisions regarding issues such as guardianship, custody and access, taken where the first and paramount consideration is the child’s welfare (F.N. & E.B. v. C.O. & Ors [2004] 4 I.R. 311); or as sometimes described the personal right to have his or her welfare fully protected (D.G. v. The Eastern Health Board & Anor [1997] 3 IR 511).
103. Just as the mother has rights in respect of the child which arise out of her natural relationship with it, so also it can be said that such relationship is the basis of certain rights of the child. This basis for such rights should not be confused with the Constitution itself which also is the foundation for several other personal and property rights, of such a child.
104. At a statutory level many of the provisions of the 1964 Act, and those of the 1987 Act apply for the benefit of the child as well as several other statutory provisions in a variety of different codes; which however it is not necessary to further explore in this judgment.
105. In addition to the rights which attach to the natural mother and to her illegitimate child, a child of a married couple and his parents, are also entitled to avail of the rights provided for by Articles 41 and 42 of the Constitution. Furthermore in significant measure, any person, who is the subject of a valid adoption order and/or who has been legitimated, also enjoys such rights.
106. Apart from the level by which Articles 41 and 42 of the Constitution afford protection (para. 99 supra), the significance of these provisions also becomes clear where there is a contest between the rights of parents to guardianship and custody on the one hand and a competing assertion of some third party on the other, such as for example, prospective adopters. In this situation the child’s right to enjoy the protection given by these Articles must be vindicated. Neither the State (through legislation) or the courts (through decision - In Re J.H. (An Infant) [1985] 1 I.R. 375 at 395) can usurp this right save in the “exceptional” circumstances provided for in Article 42.5. Therefore there is a constitutional presumption that a child’s welfare is to be found within the family unless by compelling evidence such cannot be achieved within that unit or otherwise by reason of Article 42.5 considerations. In effect the child of a married couple has the right to be educated by his parents, inter alia in religious, moral, intellectual, physical and social instruction and also to belong to that family; which rights are to be regarded as predominant in his/her welfare. On the other hand where the dispute is between both parents, on matters of guardianship, custody or access, then the best welfare test will apply. (In Re J.H. (An Infant) [1985] 1 I.R. 375).
The Blood Link:
108. At the outset of what I am about to say, it is important to keep in mind that in some cases reference to the blood link has been both instructive and informative, in particular where it has been addressed with a specific purpose in mind: on other occasions mention of it has been very much incidental and at a high level of generality.
109. Whilst the issue of genetic connectivity has most frequently arisen in disputes involving natural fathers; it is also asserted by the respondents that the courts have recognised to an important degree, this genetic link in cases involving mother and child and vice versa,. First therefore a brief reference to some such cases.
110. G. v. An Bord Uchtála, which has already been referred to, was a case where an unmarried mother wished to withdraw her consent to an adoption and to regain custody of her daughter. In separate judgments O’Higgins C.J. and Walsh J. both held that the personal rights of the applicant mother derived from ‘the fact of motherhood and from nature itself’. It is claimed by the respondents in the instant case that the underlying link to nature is a reference to the process of conception, in which the common denominator is genetics and which in turn, forms the catalyst for pregnancy. This interpretation must follow, they say, given that the core issue was whether the child should be with her natural mother or with the prospective adoptive parents. The phrase spoken of in G. v. An Bord Uchtála, can only be understood in such circumstances as referring to the blood link. It is further said that in a true sense the real contest in that case was between rival mothers with the only, but very definite point of distinction, being that link.
111. In the same case, G. v. An Bord Uchtála, Kenny J. was the only judge to mention by name, the blood link. He did so in determining whether the welfare of the child would be best served by remaining with the potential adopters or by being returned to her natural mother. At p. 98 of the report he said:
112. This relationship between mother and child, or more accurately in the presenting circumstances between child and mother, gave rise to a different issue in I.O’T. v. B, which in fact consisted of two separate but related cases. In that case the first applicant sought a declaration of parentage under s. 35 of the 1987 Act but as she did not know the identity of the person in issue, her natural mother, she sought discovery of documents which might reveal who she was. Her entire proceedings were dismissed on the basis that as a pre-condition for obtaining such a declaration, it was necessary to name the putative parent on the application notice.
113. The second applicant in I. O’T v. B, did not have this difficulty. At p. 348 of the report Hamilton C.J., in recognising the existence of an unenumerated right to know the identity of one’s natural mother, said:
The existence of such right is not dependent on the obligation to protect the child’s right to bodily integrity or such rights as the child might enjoy in relation to the property of his or her natural mother but stems directly from the aforesaid relationship.”
114. Unlike in I.O’T. v. B., there is nothing on the facts of the instant case to call into issue the children’s right to dignity or their right to realise the full extent of their individual personalities. As the passage from the judgment indicates, it was submitted in I.O’T. v. B. that the right to know one’s natural parent was an essential element in the development of one’s personality and the exploitation of one’s dignity. Keane J. thought little of the point describing it as “a grave overstatement”, citing situations of personal tragedies and widespread social upheavals by reason of which millions of people have grown fully into adulthood, without ever knowing who their parents were. (p. 371). Undoubtedly the latter point may be correct. It may also be entirely true that for a great number of people, the identity of their natural parents is not or is no longer a focus of their interest or even their curiosity. But for others the need to know is there and its intensity and urgency can range from the casual to the possessed: it can be all consuming and become a lifetime’s obsession. For those, who undertake this search for identity, the desire to find out must be great and if unfulfilled one could readily see how such individuals, as human persons, would be much the less for it. The need to know for those who particularly feel it, is well recognised in the literature and is witnessed first hand by those Agencies who offer help to this end. It should not be understated or lightly dismissed when present.
115. In S.W. & J.K. v. V.W., a case involving an unmarried father, the Supreme Court, whilst refusing to acknowledge the existence of any constitutional right to guardianship for such person, went on however to say that the blood link “may give rise to rights of interest or concerns”, which would have to be determined on a case by case basis. At one end of the spectrum was the existence, without more, of such a link: at the other end was the father who played an integral role in the life of his child, quite frequently in what could only be described as a family unit even if not so recognised by the Constitution. Such circumstances may confer on the father very considerable “rights and interests” indeed. At p. 447 of the report Finlay C.J. said:
The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case.
The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed.” 116. Very similar language was used in W.O’R. v. E.H. & Anor. [1996] 2 I.R. 248. At p. 269, Hamilton C.J. stated that the blood link, in the absence of other factors beneficial to the child, is of small weight and would not be a determining factor in any application under the 1964 Act. But he went on to confirm that:
117. As can be seen from the law reports, the Court has looked at this link and its legal consequences in terms of the relationship between a natural father and his child (F.N. & E.B. v. C.O. & Ors), a good deal more frequently than in the case of the natural mother and her child (G. v. An Bord Uchtála). Be that as it may, Nicolaou, S.W. & J.W. v. V.W. and W O’R v. E.H. together with G. v. An Bord Uchtála, can now be considered as having set out what the main legal principles are in relation to both situations. The decision of Walsh J. in Nicolaou has largely remained the declared position in so far as it covers this matter, but the forceful criticism of the judgment by Barrington J. in W. O’R. v. E.H. is worthy of consideration. In any event as previously stated, the fact of fathering a child, in and of itself, confers on the unmarried father nothing more than an entitlement to avail of a statutory provision to make a court application (but see para. 128 infra). However, depending on circumstances, such a father on application made, may have every entitlement to obtain judicial recognition of a broad range of intimate rights in relation to his child. In fact in principle, I see no reason why such rights could not be, for all practical purposes, coterminous with those vested in a father who is married to the child’s mother. Finally, to state the obvious, the male contribution to the reproductive process can only be made by a genetic donor.
118. In the matter of N. v. Health Service Executive [2006] 4 IR 374 (the Baby Ann case) there is a reference to the blood link in at least two of the judgments delivered by this Court. In that case the natural mother withdrew her consent to have her child adopted after signing the final consent form but before the adoption order was made. Shortly thereafter she and the natural father were married and immediately had the birth of their child re-registered. Baby Ann was therefore now legitimised and was part of a family founded on marriage. They sought to regain custody of the child, who by then was a happy and contented two year old and who, having been in their care for most of this period, had formed a close attachment to the prospective adoptive parents. The issue thus arising was as between the child’s biological parents and the proposed adopters.
119. Whilst the case raised a number of important issues, it becomes relevant at this point only for the court’s references to the blood link. At pp. 547 and 548 of the report, Geoghegan J. had this to say on the point:
210 In case it should be thought in some circles that the attachment of importance to the biological link is an outdated concept and is rooted merely in some conservative Irish view of the family, it is of considerable interest that this same concept has been reiterated by the House of Lords in the recent case of In re G. (Children) [2006] UKHL 43, [2006] 1 WLR 2305.” 120. Fennelly J. also gave much consideration to this matter:
313 The applicants constitute with Ann a family. This is no mere constitutional shibboleth. Article 41 speaks of the rights of the family being "antecedent and superior to all positive law". In my view, that is no more than the statement of the simple facts of life. People of opposite sexes meet, marry, procreate and raise children. Prevailing trends towards the recognition of non-marital and even same sex relationships are invoked from time to time with a view to expanding the legal definition of the family. None of that arises in the present case. Even if it should become necessary to recognise the family relationships of the increasing number of couples who raise children outside marriage, such a development would be based in most cases on the natural blood bond. It would in no way undermine, but would tend to emphasise the centrality of the mutual rights and obligations of the natural parents and their children.
314 One does not have to seek far to find that courts widely separated in time and place have accepted the need to recognise and give weight to what has been variously characterised as the blood, or natural, or biological link between parent and child. In In re O'Hara [1900] 2 I.R. 232 at p. 239, Lord Ashbourne L.C. declared:-
316 The only reason for these observations is to emphasis that the applicants constitute a family with Ann regardless of the definition of family which is adopted. I am happy to adopt the references to the several constitutional references to the family and the rights of its members which are contained in the judgments of Hardiman and Geoghegan JJ. Like them, I believe that the decision of this court in In re J.H. (inf.) [1985] I.R. 375, is central and dispositive of the issues in the present case.” 121. As is evident from these passages, the decision in In Re G. (Children) [2006] 1 W.L.R. 2306 featured prominently in the analysis conducted by Fennelly J. Accordingly, it is therefore worthwhile to add the following about that case. The relationship which had broken down was a lesbian one, with each woman looking for custody: one of the two was the biological mother of the child. Baroness Hale, who delivered the main judgment, approved of two decisions of the Full Court of the Family Court of Australia (Rice v. Miller [1993] F.L.C. 92 - 415 and In Re Evelyn [1998] F.L.C. 92 - 807), which held that the biological link was an important factor in the welfare of the child. Likewise, she was of the view that the fact that one of parents was a natural mother was an important and significant factor in welfare matters, a conclusion which she described as being based on a principle of “universal application”. Lord Nicholls of Birkenhead decried “any tendency to diminish the significance” (para. 2) of the biological input when welfare considerations are in issue. Therefore, the blood link was a matter of high value in this context.
122. The final case which I wish to refer to is J.McD. v. P.L. & Ors [2010] 2 IR 199. The respondents, a lesbian couple who were in a long term relationship, approached the applicant seeking his agreement to donate sperm to the first named respondent who hoped to conceive as a result. An agreement was entered into which allowed any child so born to know the identity of the sperm donor who, whilst having no parental input would have, at the discretion of the couple, access to the child in the role of a “favourite uncle”. From the resulting process a male child was born in May 2006.
123. Whilst the evidence presented a sharply conflicting version of what in fact the parties relationship turned out to be over the following number of months, it is clear that the respondents became increasingly concerned with what they felt, was an excessive and most unwelcome intrusion into their family life by the applicant, whose behaviour much more resembled that of a “father” than as envisaged, at least by them, than that of a “favourite uncle”. Matters came to a head when the couple decided to move to Australia to be closer to the mother’s family after her mother suddenly became unwell. That prompted an application by the father seeking an order under s. 6A of the 1964 Act appointing him a guardian of the child.
124. Before the substantive case came on for hearing, the High Court and on appeal this Court, made a number of interlocutory orders, the effect of which was to permit the father to have limited access to the child on an interim basis: this access took place without incident.
125. In a lengthy and careful judgment delivered in April 2008, Hedigan J. refused all relief, holding that the natural mother had a right to custody under Article 40.3 of the Constitution and that as such, the Court should presume that she will act in the best interests of the child. Furthermore, the learned judge, resting his decision on Article 8 of the Convention held that as a heterosexual couple could be regarded as a de facto family, if certain conditions were satisfied, he saw no reason why the respondents, whose relationship otherwise satisfied the conditionality of the Strasbourg Court, should not likewise be so considered. On appeal the father was granted access but not guardianship rights to the child, the extent of which were to be determined in accordance with the provisions of the 1964 Act. Further, this Court unanimously declared that a de facto family, as distinct from one founded on marriage, was an institution unknown to Irish law and that in any event contrary to what the High Court had stated, the European Court of Human Rights had found that same sex relationships did not fall within the scope of Article 8 of the Convention.
126. In her judgment Denham J. was satisfied that the correct test to be applied was that as outlined in S.W. and J.K. v. V.W. On such basis the applicant was a father to whom s. 6A of the 1964 Act applied; in her view however, the High Court had not given sufficient weight to this fact. Geoghegan J. felt that S.W. and J.K. v. V.W. and W.O’R. v. E.H., when read together explained the legal position of an unmarried father and laid down the principles which should be applied when the provisions of the 1964 Act are invoked by him. As part of his judgment the learned judge referred to a particular passage from S.W. and J.K. v. V.W. (para. 115 supra), which in his view might have been phrased in a somewhat “polarised” way. The positioning by Finlay C.J. of the father at the lowest end of the spectrum where conception had resulted from casual intercourse, should not in his view be read too literally. The learned judge felt and in my view quite correctly so, that a great number of men who find themselves in that situation react, at least as far as the child is concerned, as a responsible, caring and participating father, should. As the circumstances in which a child is born out of wedlock and the father’s response to such an event are so infinite and varied, it seems to be that if generalisations have to be made, they should strictly be regarded as such and nothing more.
127. Geoghegan J. also referred to what he described as the “somewhat enigmatic” phrase firstly used in S.W. and J.K. v. V.W. (para. 115 supra) and repeated by Hamilton C.J. in W.O’R. v. E.H, which was to the effect that there may exist “rights of interest or concerns arising from the blood link between father and child” (para. 116 supra). The learned judge was of the view that the meaning which Finlay C.J. in S.W. and J.K. v. V.W. intended this phrase to have, was that such a link of itself may give rise to a limited number of natural rights, “of a kind”: but which rights would not have constitutional recognition.
128. I must confess that for my part I have never read the passage in which the phrase was firstly used, and even less so when the context of its endorsement in W.O’R. v. E.H. is accounted for, in this way. I take the view that what was being suggested was that the “mere” right of the natural father to apply, was being enhanced at least to some degree. In fact I am satisfied that the intended purpose of the passages in both cases was to acknowledge the obvious, namely that multiple unit groups of society, comprising of man and woman of all ages, origins and beliefs who live together and raise children do so, in a manner and to a degree indistinguishable from their married counterparts: and that in such situations the unmarried father is deserving of greater legal recognition than simply having a “mere” right to apply. Surely instead of disowning such fathers, society has a deep rooted and vital interest in recognising, facilitating and encouraging their role within the family unit. It follows from this view that the assessment necessary is not approached solely by the welfare considerations but is also driven from the perspective of the father’s position. If it was simply the former, the making of these observations in the first place would have been entirely unnecessary.
129. Fennelly J. in J.McD. v. P.L. & Ors, also dealt with this issue: (paras. 299 to 304):
4. both Hamilton C.J. and Denham J. spoke of de facto families in the context of an application for guardianship pursuant to the Act of 1964 and only in the sense of a natural father living with his child and unmarried partner in an ostensible family unit; a de facto family does not exist in law independent of the statutory context of an application for guardianship;
5. The father's rights, i.e., right to apply, if any, are in all cases subordinate to the best interests of the child. [301] The blood link is an unavoidable biological fact. Equally, it exists outside marriage in situations as diverse as human life itself. In our changing society, many children are born into apparently normal and stable family situations, though the parents have never married. At the other extreme, a child may be the fruit of an act of casual lust or commerce or, worse, an act of violence. Advances in science have made it possible for conception and birth to take place even without any act of human intercourse. It is both right and natural to have particular regard to the context of conception, birth and subsequent family links.
[302] Although it is not suggested, in the present case, that the applicant is any less the biological father of the child by reason of being a sperm donor, he has, as a non-marital father, no constitutional right to guardianship or custody. The principle is that he has the legal right to apply and to have his application considered. To the extent that Finlay C.J. and Denham J. postulated a scale for assessment of "rights of interests or concern", it seems likely that the sperm donor would be placed quite low, certainly by comparison with the natural father in a long term relationship approximating to a family.
[303] The particular context of a sperm donor has not previously come before our courts, though we were referred to a Scottish case where a sheriff held a sperm donor to have parental rights. Murphy J. referred to the matter in his judgment in W.O'R. v. E.H. (Guardianship) [1996] 2 I.R. 248, at p. 286, as support for the argument against recognition of the mere fact of fatherhood as conferring constitutional rights. In my view, the matter must be viewed only by reference to the interests of the child.
[304] The blood link, as a matter of almost universal experience, exerts a powerful influence on people. The applicant, in the present case, stands as proof that participation in the limited role of sperm donor under the terms of a restrictive agreement does not prevent the development of unforeseen but powerful paternal instincts. Dr. Byrne acknowledged that it would be "beyond what a man in that circumstance would be capable of" for him not to wish to be involved. More importantly, from the point of view of the child, the psychiatrists were in agreement that a child should normally have knowledge, as part of the formation of his or her identity, of both parents, in the absence compelling reasons to the contrary. There is natural human curiosity about parentage. Scientific advances have made us aware that our unique genetic make up derives from two independent but equally unique sources of genetic material. That is the aspect of the welfare of the child which arises.” 130. After this fairly extensive review of the case law, the immediate and obvious question which must be asked is whether, and if so to what degree, these decisions determine the issues in this case or influence their outcome. Leaving aside the cases where the asserted rights were being agitated by the natural father and also the case of J.McD. v. P.L. & Ors, all other decisions, irrespective of the views expressed on the importance of the blood link or on the constitutional or legal consequences which might follow for either mother or child, were considering the issue in the context of a single female being involved: where such person was solely responsible for the production of the ovum, was the person within whose body that was fertilised, was the person who carried the embryo and the person who gave birth to the child. Even the facts of In Re G. (Children) fall squarely within this description. The courts therefore, have never been called upon to view a divisible situation as exists in the present case.
131. Consequently, apart from the observations of Murphy J. in W.O'R. v. E.H., who anticipated, but offered no opinion, on some of the difficulties which would arise in cases of assisted reproduction, and the foresight of Baron J., in I.O’T. v. B., in warning that “the need to keep the door open [regarding the outcome of the issues in that case] is based on genetics.” (p. 381), there is no guidance within the available authorities as to how within our constitutional or legal structure the facts of this case should be positioned. Therefore, none of these decisions are determinative of the issue: neither are those involving natural fathers, with whom Mr. J. McD. can be closely if not entirely associated. The explanation for this deficit is easy to understand and is most straightforward: the facts of this case are novel, certainly in legal terms if not in many other ways as well. Whilst this situation will inevitably change, the instant case however, as presenting through the evidence, must be decided upon.
132. To have discovered at such a tender age, that she had been born with such a profound abnormality or disability must have been the most traumatic event ever experienced by Mrs. R. Because of its consequences she would have become destined, if she had lived in another generation, to end her life childless. Many thousands of people for multiple and diverse reasons find themselves in the same or in a similar situation. The inability to even contemplate the possibility of having children would be forever with them. For those persons, who constitute a very small percentage of the population but who nonetheless are sizeable in number, the discovery of IVF even at the initial stages of its evolution, must have instilled a great sense of hope and expectation within them. It could rightfully be looked upon as potentially life changing. As matters progressed at an ever increasing pace, the impossible became possible. No longer would such individuals be destined to remain without child. Even siblings might be thought of, as a possibility.
133. The continuing development of this and other related sciences (IVF - for short -), which are now fully integrated into the mainstream of such disciplines, has offered so many, not simply the hope but also the realistic opportunity of overcoming what disease, disability and malformation have inflicted upon them.
134. As IVF has continued to develop, in its discovery, technique and application, the variety of abnormalities that can be dealt with, and thus the range of people that can be helped, is ever increasing and ever expanding. Its advent, is or surely will become recognised as one of the great events of our times. As stated, the areas in which IVF can intervene are multiple, but are almost always complex and vary greatly in detail. In many cases even with such help and assistance, the individual in question may still not be able to participate in the reproductive process at any level or else if she can, only do so in a way quite different to a person who is without such disease, disability or malformation. But what the treatment seeks to do, is to permit to the fullest possible extent, that person’s participation in the process, facilitated by the relieving or even curative effect which it has on the underlying disorder.
135. Prior to such discovery, the natural form of reproduction was the only form known to man. Legal concepts, principles and mechanisms had been developed and were in place to deal with and resolve any difficulty or dispute which emerged therefrom. Such regimes of course required reassessment from time to time, as society changed. But once the basic structure of human creation remained as it was, solutions could be found within established norms, which society was both familiar with and comfortable in their use.
136. This position changed in quite a dramatic way when IVF was discovered and became available. For the vast majority of people the resulting medical and scientific advances, were there to be wondered at and admired. But although not directly affected by such discovery, the issues raised by IVF in its many forms were such, so as to challenge society as a whole in respect of many deep rooted and long cherished values.
137. The issues arising from this process appear in various forms, depending in some respect on what type of reproductive problem is involved, and what is the preferred treatment to deal with it. Such difficulties, obviously are too numerous to mention even by reference solely to the female gender. As above stated, surrogacy intervention was necessary in this case so as to respond to Mrs. R.’s condition, which meant that she could not, in a complete sense, conceive, carry the child or give birth to it. Without a uterus that element of the process was denied to her. However, she has otherwise contributed to the fullest extent possible, namely in being the sole provider on the maternal side of the genetic input into the creation of her children. She has thus done everything which the most up to date and available treatment permits her to do in the reproductive process.
138. As one has moved into, indeed as one is now firmly entrenched within a new medical and scientific world, a world affecting in a most profound way those who engage with it, it becomes necessary to recognise and respond to the highly significant and complex moral, social, ethical and legal issues which arise, impacting as they do not only on such persons but also on society as a whole; and in a way which questions its historical, traditional and cultural views and values. This new scientific and medical world is certainly timeless if not limitless.
139. Like all such profound innovations however, the productive utility of IVF must be consistent with and accommodate the common good. Regulation would appear to be the obvious answer: not only to cover matters resulting from new discoveries and the propriety of treatment and its use, but also to deal with the consequences which follow both from its successes and failures. There already exists a most extensive report from the Commission on Assisted Human Reproduction which is now almost a decade old. As if the complexities of this situation needed any demonstration, it can immediately be seen, from just one recommendation of the majority how difficult this area is: the recommendation was to the effect “that the child born through surrogacy should be presumed to be that of the commissioning couple”, whereas in the United Kingdom, by force of statutory provision, the opposite view is helpful. Whatever its contours might be, such regulation would at least create a legal framework and bring about some degree of certainty, by reference to which those involved with the process, could ascertain their position.
140. The arrangement put in place by the parties and their individual participation in it, is not unlawful either by virtue of the civil or criminal law in this jurisdiction. On first principles therefore, one can thus say that it is lawful on the basis of what is not prohibited by the law is permitted by the law. That however begs a serious question, which is whether if one party sought to enforce its terms would the court decline to so do either on public policy grounds or otherwise. That issue does not call for resolution in this case as neither party as such, seeks to legally validate the agreement. Incidentally however, the tentative view to date is inclined towards non-recognition.
141. The agreement however is not devoid of importance; irrespective of whatever legal status it might have. It is quite clear that in a spirit of full cooperation, knowledge and consent, the parties in this case committed themselves to regulate each aspect of the arrangement and the consequences which would follow a successful outcome, both as to matters of fact and if the law permitted, as to matters of law. It is at least therefore indicative of the views of each party which they individually declared at the outset and which they have faithfully implemented to date. By mutuality of accord Mrs. R. was to be accredited with the status of “mother” to the exclusion of the notice party, who also renounced any and all rights to the children, howsoever arising. In addition, Mrs. R. and her husband were to be and were to act exclusively, as the parents of the children. Moreover, the consequences in respect of the children which would follow from that status, if legally recognised, were put in place. The husband of the notice party has confirmed by statutory declaration that he is not the father of the children. Therefore no complications arise in that regard. In an area otherwise unregulated by law, it is difficult to see what more the commissioning parents could have done if Mrs. R. and her husband were ever to have a chance of becoming what they would regard as natural parents, even if partly dependent on IVF for that purpose.
142. Historically, where the natural reproductive process was involved, it might be fitting to ask the question “who is one’s mother?” However even then, to meaningfully engage with the question there must be a context. The answer might be quite different if the inquiry was framed in such a way as to focus on the person who had provided the essentials, of the common meaning of the phrase “motherhood”. Likewise with regard to the questions “who is one’s father?”, or who has looked after the child like a father should.
143. In this era of assisted human reproduction there are several feasible answers to these questions. In the recent case of In Re G. (Children) [2006] 1 WLR 2305, which has previously been mentioned, Baroness Hale ventured the following discussion on these topics. At p. 2316 of the report it is stated:
34. The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child’s mother, whereas the mother who provided the eggs is not: the 1990Act, section 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.
35. The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child’s needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase “psychological parent” gained most currency from the influential work of Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:
144. In considering the constitutional issue it is in my view of the first importance to avoid, if at all possible, a generalised discussion, of the problems which are capable of arising from the use of assistance in the reproductive process. In an area totally unchartered, which involves a diversity of inter-related matters, some of which may simply have to yield to others, it is preferable in my opinion to take a narrow approach and concentrate on the facts of this case. There is another reason for this, which becomes evident when I suggest how this judgment should be responded to (para. 153 infra).
145. What is essential therefore to ask is whether, against the background of her condition, the medical and scientific evidence given in the High Court and the judge’s finding of fact thereon, the deliberate and decisive decision of Mrs. R. and her husband to avail of this treatment, her genetic contribution to fertilisation, to the structure giving rise to the placenta and to the inheritable characteristics which the children inherit from her, should this Court recognise the existence of rights at a constitutional level arising out of such relationship between Mrs. R and her children, between the children and Mrs. R and between both parents and the children?
146. The answer from Mrs. R’s point of view is not easily arrived at. If she was the only contributor on the female side the position would be quite straightforward, even if unmarried. Searching for a solution by analogy with the law as it applies to paternal actors is apt to confuse rather than to elucidate. The situation of the male who contributes in natural form, whether married to the child’s mother or not, is again well declared in the case law. Where he is a donor by artificial means, his position and that of the child depends on whether he is or is not married to the child’s mother. Even the case of In Re G. (Children) is of no direct assistance as in that case the biological mother was also the gestational mother. So, whilst the blood link has featured, albeit to different degrees in these cases, none of them have a context quite like that of the instant case. Therefore in my view, I think that the constitutional issue must be addressed at the level of principle.
147. For the purpose of this discussion I am disregarding for the moment, the rearing, nurturing and upbringing role played by Mr. and Mrs. R. in respect of the children; I am simply referring to Mrs. R’s part in the procreative process. The choice of IVF was forced upon her by abnormality, which in itself potentially raises serious issues of equality under Article 40.1. The decision to engage, as stated, was pre-planned and deliberate, in the full knowledge of what was involved and what the hoped for consequences might be. She provided the ovum which, when matched and thereafter fertilised with the sperm of her husband, gave rise to the pregnancy. That process could never have been initiated without her contribution. There would have been no zygote and no embryo without her. She participated in every way that was possible for her and to the full extent of her capacity. Her involvement could not have been more.
148. Of course, it is true also to say that the notice party played a major role in the growth and development of the embryo, to the point of producing live and healthy children. That is a contribution which I am not overlooking and in my view is one which cannot be overlooked. In concentrating on Mrs. R., I am not to be taken as suggesting that the surrogate’s role was insubstantial or insignificant: far from it. As one of the medical witnesses said, the gestational environmental is “beyond essential” in this particular process. But on the facts of this case any rights which she may have do not fall for consideration. In some future case these may undoubtedly arise but not so in this one. Her role is one which should be acknowledged and that I do.
149. The question of intention, evidenced by such multiple acts of deliberation on the part of Mr. and Mrs. R., is a significant factor in whether their situation is capable of constitutional recognition. In my view, it is.
150. The relationship of Mrs. R. and the children and the children’s relationship with Mrs. R., in the context of the reproductive process involved in their conception, is justly deserving of recognition at constitutional level. From her point of view she is the sole provider of the genetic material on the maternal side. That contribution is singular in its significance: it is what gives rise to our very being: it is the basis of who we are: it directs our individual uniqueness and is indestructibly engrained in our characteristics and those which we pass on to our offspring, by procreation. The High Court in my view was perfectly justified on the evidence in reaching the conclusion which I have paraphrased elsewhere in this judgment namely:-
151. Logically at this juncture of the discussion, one might expect that the judgment would enter into a discourse, of finer detail, regarding the rights of the respondents, individually and as a group, and where such rights should be constitutionally positioned. Consistent with the self imposed restraint which I have advocated above and for the reasons therein outlined (para. 144 supra), I do not propose to follow that course but I reserve the right to do so if called upon to further consider this issue. I am satisfied to limit myself by saying that such rights are to be found in Article 40.1 and Article 40.3 of the Constitution. They may well be justified also by reference to other provisions, but I do not consider it necessary to further explore this issue at the present time. If occasion should arise I will, as stated, do so in the future.
152. The question then remains as to whether the State has complied with its constitutional obligations as above referred to. In my view it has not. Mrs. R. may not even have the right to apply for guardianship, which even an unmarried father has and which in any event even if she has, would not be an adequate vindication of her rights. To suggest that the potential availability of adoption might satisfy this duty is unacceptable. As worthy in all as adoption is, making an enormous contribution to individuals, families and society alike, it does not meet the constitutional requirements in this case. Neither does the fact that Mr. R. could undoubtedly apply for guardianship. Whether the court could in those circumstances appoint Mrs. R. as joint guardian is perhaps an issue of some complication, which I will leave aside. One way or the other, I am satisfied that there is a right at constitutional level arising from the circumstances of this case which the State in the discharge of its duty under Article 40 must recognise and thereby vindicate.
153. In arriving at this conclusion I am acutely conscious, that the duty of recognising and vindicating rights falls on all branches of government, with the ultimate custodian of this responsibility, being the judiciary. In an area so complex and diverse as assisted human reproduction, which involves detailed matters of policy, it is in my view appropriate, that an opportunity should be given to the legislative branch in the first instance, to decide in which way such rights should be recognised and vindicated. However, in the event of a failure to do so, recourse may be had to the courts for this purpose.
154. Finally, in several respects I find the outcome of this judgment unsatisfactory, in particular regarding the children. As the law is presently understood in this area the children, prior to the 1987 Act, may well be considered illegitimate. That is a most undesirable consequence of the circumstances in which the legal situation rests, as of now. Furthermore, even with the abolition of illegitimacy, it is by no means certain that the children together with Mr. R. and Mrs. R. constitute a family under the Constitution. If that be correct, which I am not called upon to definitively say, then the protection afforded by virtue of Articles 41 and 42 thereof is denied to them. This would be a highly undesirable state of affairs which results from a situation where scientific and medical advances have far outpaced the use of existing legal practices and mechanisms. A comprehensive response is urgently required: which response at the level required, is not possible from a judicial point of view. Intervention therefore by the Oireachtas is essential.
155. For the above reasons, I will allow the appeal but would make a declaration that Mrs. R. and the children have rights which must be recognised and vindicated under Article 40 of the Constitution, in such a way which reflects, the fundamental relationship between them.
1. At age eighteen Mrs. R. discovered that she was born without a uterus, but that her ovaries were healthy and intact. After her marriage to Mr. R., the couple began to investigate what possibilities existed, by which they might have children and become parents. When in vitro fertilisation (“IVF”) and other forms of assistance in human reproduction were being discussed, the notice party, Mrs. R.’s sister, who by then had been separated from her husband by formal decree of judicial separation and with whom she had, during their marriage two children, offered to act as a surrogate. The intended process was that Mrs. R. would produce an ovum which, when fertilised by her husband’s sperm in vitro, would be implanted into the uterus of the notice party. Thereafter, the embryo would grow and develop in the gestational environment provided by the surrogate, thereby leading it was hoped, to the birth of a child. This is in fact what happened but with the good fortune that twins resulted, both being born on the 13th day of September 2008. Immediately after birth, when well enough to do so, the newborn children went home with Mr. and Mrs. R. who have cared for them, in what they consider as their family unit, ever since. The role of the surrogate, who participated in the process solely for the joy of seeing her sister and her brother-in-law have children, was always intended to be, and remains that, of a loving aunt. In common parlance therefore, Mrs. R. can be described as the genetic mother, the notice party as the birth mother or the gestational mother with Mr. R. as the father.
were all agreed to in advance, and were when the occasion demanded, implemented in a fully consensual manner.
1. the provision of the ovum and sperm;
4. the carrying of the embryo through the gestational period to the birth of the children;
7. In the points of claim, which for the following purposes can be regarded as having superseded the special summons, the applicants, those firstly named being the children followed by Mr. and Mrs. R., sought a number of reliefs which included the following declarations:-
As an alternative to such declarations, an order was also sought under s. 6A of the Guardianship of Infants Act 1964 (“the 1964 Act”) or pursuant to the inherent jurisdiction of the court, appointing both Mr. and Mrs. R. as guardians of the children.
1) that Mrs. R. was the mother of the children and thus should be so declared pursuant to the Status of Children Act 1987 (“the 1987 Act”),
9. A fair representation of the medical and scientific evidence given in the High Court can be summarised in this way:
In addition to Professor Green and Dr. Wingfield, the above summary also includes the views, where relevant, of Dr. Cliona Molony and Dr. Fionnuala Breathnach. (Ex. Submissions of Notice Party).
[1] An ovum is fertilised by sperm giving rise to a genetic construction comprised of 46 chromosomes forming a Genome from which each individual person is defined by way of DNA. The Genome ‘is the code of our life’ and ‘[y]ou cannot have life without DNA and it controls, ultimately controls everything.’ The Genome, i.e. gene sequence, is complete on fertilization. It does not change, save for mutational processes, which are untypical, or as a result of genetic defects. The growth and development of a person is as a result of genetics, the environment and the interaction between genetics and the environment. However, the uniqueness of each individual person is as a result of the recombination of the DNA of the donor, i.e. the 23 chromosomes of the male and the 23 chromosomes of the female, which occurs prior to the fertilisation of the ovum by the sperm. Each unique individual human being is formed at the point of the zygote, i.e. the fertilised ovum. In the context of the surrogacy arrangement in this case the fertilised ovum developed into an embryo before implantation. Upon implantation the embryo attaches itself to the wall of the uterus and the cells of the embryo create the placenta which provides for the blood flow, and ‘vital constituents’ therein, as between the Gestational Mother and foetus. The ‘architecture’ that the Gestational Mother provides through the womb is ‘critical’ to pregnancy. The placenta is the ‘anchor’ to this architecture. It is the Genome, or genetic structure, that is the catalyst for the development of the placenta. Thereafter, the Gestational Mother does have an influence on placental function and the ‘intrauterine environment … informs almost every outcome of the pregnancy’. However, ultimately the placenta is a structure that originates from the Genetic Mother and not the Gestational Mother in that the DNA of the placenta is ‘almost always’ that of the baby.
[3] Epigenetics is not a concept applicable solely to the gestational period, or as a consequence solely within the provenance of the Gestational Mother, but rather Epigenetics can operate after birth. Whilst the influence of epigenetics may be ‘strong’ and have ‘dramatic affects’ on the expression of genes that influence is not confined to the gestational period but also the postnatal period.
‘DNA isn’t changed by environmental and DNA sequence isn’t changed by environment influence but DNA itself can alter expression up or down or the form of the expressed value.’
[5] Microchimerism is the presence of cells within a person which are not of that person. During pregnancy cells can transfer, through the placenta, from the Gestational Mother to the unborn eliciting immune responses which contribute towards the development of the unborn’s immune system. This has no effect on the core DNA of the unborn, i.e. the Genome. Further, the ‘sole source’ of an unborn’s ability to respond to antigens (substance that stimulates the production of antibodies) as transferred is the unborn’s core DNA structure. Further, the number of such cells that transfer by way of microchimerism is ‘very, very, very, very small’ and ‘highly rare’ and almost insignificant.
‘the DNA structure is not altered itself by epigenetics. DNA sequence is not altered by the environment whereas epigenetics is altered. Epigenetic sequences themselves let’s say, if we want to call that its own sequence, can be altered.’
[7] Both Prof. Green and Dr. Wingfield, witnesses for the State, were members of the Commission on Assisted Human Reproduction that produced a report in 2005. Both were members of the majority in terms of the recommendations made, including recommendation 33:
‘There are the traditional prerequisites first of all, which is genetics, in the sense that a child would have inherited genes from both its genetic mother and its genetic father. In most circumstances that carries all the way through. So the person whose eggs are used to make the child will also be the person who carries and it will also be the person who raises and nurtures that child and would be their mother in every sense. But there are other aspects to motherhood. There are foster mothers, there are adoptive mothers, neither of whom necessarily has any genetic connection to the child they raise. And obviously there are also gestational mothers. The term ‘mother’ is used in all of those and I wouldn’t change that.’
This remains the view of Prof. Green. The reasons supporting the recommendation were that ‘a major contribution to a child’s who they are is their genetic parentage’ and also the ‘intent’ on the part of the commissioning parents. Therefore, where a genetic connection to the commissioning couple co-exists with an intention on their part to conceive a child, parentage should be presumed to rest with the commissioning couple. Such a conclusion was reached notwithstanding recognition of the importance of gestation in the bringing of a child into existence. From the perspective of Dr. Wingfield, providing evidence as a scientist on the issue, she stated:
‘The child born through surrogacy should be presumed to be that of the commissioning couple.’
In expressing this view Dr. Wingfield, similar to Prof. Green, relied on the genetic connection between the commissioning parents and the child and the intent of the genetic parents.‘I would feel and I think most people would feel the parentage should lie with the commissioning couple.’
10. Arising out of the evidence given, the High Court made an important finding of fact. It did so by recalling the views of the scientific witnesses who explained that up to the time of the publication of the Report of the Commission on Assisted Human Reproduction in April 2005, the science of genetics, as exemplified by a straightforward deterministic view of the influence of chromosomal DNA material in relation to the determination of the identity and development of the foetus and baby, prevailed, but that thereafter the impact of epigenetics also had to be considered. Having reviewed such evidence, the learned High Court Judge, for the reasons set out at para. 98 of his judgment, stated:
He concluded by saying that whilst the science of both branches is likely to develop further into the future, it is most improbable that epigenetics will ever trump the deterministic quality of chromosomal DNA.
“…that the influence of such epigenetic occurrences is not of such significance as to alter the overriding significance of chromosomal DNA for the purpose of determining identify and inherited characteristics leading to a conclusion of the paternity and genetic maternity…”
16. On the 16th May, 2013 the High Court made an order granting two declarations, firstly that Mrs. R. was the mother of the children, “pursuant” to s.35 (8)(b) of the 1987 Act (“the s. 35 Declaration”) and secondly, that Mrs. R. was entitled to have the particulars of her maternity entered on the birth register and further, that likewise the children were entitled to have particulars of their relationship with Mrs. R., also recorded on their birth certificates, by describing her as their mother.
19. The main issues on this appeal can be considered as follows:
1. Whether the provisions of the 1987 Act, apply in such a way that the issue of maternity can be determined in the same manner as paternity is, in circumstances where non-union exists between the genetic and gestational mother.
21. The office of the first named respondent was initially created by virtue of the Marriage (Ireland) Act 1844 and its remit was extended firstly to include births and deaths by the Registration of Births and Deaths (Ireland) Act 1863 and secondly, to include the registration of Roman Catholic marriages, by a private member’s Act of Parliament of the same year. As a result of these legislative enactments, a complete Irish civil registration system was then in place. That system was enhanced throughout the latter part of the 19th century and the early part of the 20th century, by additional pieces of diverse legislation. The only relevant Act in this context was the Births and Deaths Registration Act (Ireland) 1880 (“the 1880 Act”) and the regulations made thereunder, both of which remained highly influential with regard to several matters of substance and detail, until repealed and replaced by the 2004 Act.
“ Perhaps at this point I should expressly refer to a distinction between "legislative history" and "parliamentary history" of a statute - at least for the purposes of this judgment. In some writings and judgments the former term is used so as to include the latter but in classic common law tradition that is not the case. As the seventh edition of Craies observes at p. 126 "The cause and necessity of the Act may be discovered, first, by considering the state of the law at the time when the Act was passed. In innumerable cases the Courts, with a view to construing an Act, have considered the existing law and reviewed the history of legislation upon the subject". Craies also observed that it was hardly necessary to cite authorities for this proposition. This is an approach which permits an Act to be interpreted in the light of its legal historical context and with regard to the provisions of other Acts in pari materia. This long established approach of looking at legislative history is entirely distinct from that of parliamentary history where the latter refers to parliamentary debates and what occurred in the passage of a Bill through parliamentary procedures prior to its enactment.”
31. In addition to a duly noted entry being evidence of the birth in question, (s. 68 of the 2004 Act), such an entry, as to all matters recorded must also be presumed to be both accurate and correct. This issue, albeit in quite a different context, was looked at in my judgment in Foy v. An tArd Chláraitheoir & Ors [2012] 2 I.R. 1. In the quotation which follows, having spoken of the understandable necessity for every state to have in place a registration system, I stated:
“The purpose of the birth register is to record certain required particulars of all persons who are born in the State. The particulars are relative to the fact and event of birth and apart from permitted corrections, the entry is never thereafter altered or adjusted. It is therefore a snapshot of events occurring on a particular day. It is a record of historical fact. It is not intended to and does not record any other major event in a person’s existence, with death being separately recorded. In particular it is not intended to be a document of current identity although in practice this has not always been the case.” (para. 170)
33. For reasons which will become self-evident from the discussion which follows, the applicants, supported by the notice party, strongly rely on the 1987 Act to ground their submission that in legal terms, the DNA link between the child and the maternal provider, is determinative of who the mother should be. As Mrs. R. was the only contributor in this regard she is in law, they say, the mother of the children and accordingly, the High Court was perfectly justified in granting the declarations which it did. The same parties also rely on this statutory regime as fatally undermining the view that mater semper is an irrebuttable presumption of law. If a statute, which is unchallenged constitutionally, makes provision to the contrary as the Act does, the maxim, howsoever described, must stand aside. Therefore, in their view the basis of an tArd Chláraitheoir’s refusal to alter the register, was fundamentally flawed.
35. The 1987 Act was a major piece of social reforming, the importance of which must be looked at in the context of constitutional provisions, as judicially interpreted, which single out the family, being that based solely on marriage, for special recognition and protection under Articles 41 and 42 of the Constitution. A commendable preview of what the legislature set out to do is instantly evident from its long title, which title incidentally, was formerly known as the preamble. It was an Act to equalise to a very significant degree the rights of illegitimate children, and for that purpose to radically alter multiple legal measures, which inflicted upon such children that humiliating status, at great human cost and personal misery to them.
46. The Law Reform Commission provided a report running to over 180 pages on illegitimacy: this report is widely believed to have provided the basis for the 1987 Act and thus is helpful in giving a contextual background to its provisions. Therefore, consideration of even some of its terms would be instructive: particularly those dealing with issues such as parentage and the use of blood tests in the establishment thereof. In addition, and perhaps even more to the point is the section of the report which refers to those, who have benefited from or who otherwise have been involved with the process of assisted human reproduction.
This most basic premise of the report was carried forward in both substance and form into the 1987 Act.
“On the basis that the rights of children should not be restricted on the ground of the marital status of their parents, we consider that the status of illegitimacy should be removed from our law. It seems to us impossible to have true equality of rights as long as this status exists.” (para. 194)
Three aspects of the Commission’s Report are of particular interest in this context: these are blood tests, artificial insemination and evidential presumptions, including the abrogation of some presumptions but the continuing use, in modified form, of others.
“It should be open to anyone with a proper interest to seek to establish the parenthood of a person. But our law could greatly assist the determination of the question if it set out realistic evidential rules, including legal presumptions, designed to ensure that commonsense prevail and that the delay and trouble associated with largely unnecessary applications for judicial declarations be, so far as possible, avoided”.
(i) who should be entitled to seek such a declaration,
“Once the concepts of legitimacy and illegitimacy are abandoned, the presumption of legitimacy becomes merely a presumption of parenthood. Indeed, since maternity in our law is not regarded as raising a question of fact, the presumption becomes in practice one of paternity.” (emphasis added)
58. Before the enactment of the 1987 Act, the Supreme Court in 1984, handed down a significant judgment in O’B. v. S., which dealt with a claim made by an illegitimate daughter of her deceased father who had never married, to the effect firstly that she was entitled on his intestacy to inherent the whole or part of his estate, and secondly that if the relevant statutory provisions prevented her from doing so, then such were unconstitutional.
“1 All citizens shall, as human persons, be held equal before the law.
67. The purpose of referring to the Law Reform Commission’s Report is twofold: firstly to outline the Commission’s view of what the existing law was at that time, and secondly to highlight their recommendations for change in this area. The purpose of referring to O’B. v. S., was to indicate that even in an area of such acute personal and social significance, as with succession rights, the status of illegitimacy continued to have a pivotal impact on one of the most profound relationship s known to man and secondly, to point out that at a constitutional level, the perpetuation of such discrimination by statutory provision, could still be justified.
69. In any exercise of interpretation the end point which a court seeks to achieve or arrive at, is to discover what Parliament intended by the legislation in question. All rules of construction both primary and secondary are designed to facilitate this task. One does so of course, by reference to the wording of the provision(s) in question, extending even to the Act as a whole if necessary. The purpose and aim of the enactment and the scheme which Parliament has designed to achieve the intended result, may also play a part. Words which are commonly understood should be given their common meaning: words which have been defined or described in legislation, which is capable of being read in pari materia with the subject legislation, should similarly be construed unless some contra indicator has been given. Likewise with words or phrases which have been judicially interpreted with added importance being attached to any term, the meaning of which has been constitutionally authorised. Recourse may also be had to the Interpretation Act 2005 where appropriate. An overarching constituent of this exercise however is that “context is everything”.
Finally, s. 47 of the Act abolished the rule in Russell v. Russell [1924] AC 687.
(i) that any presumption of law as to legitimacy/illegitimacy should be abrogated,
80. The maxim, which in its abbreviated form gives rise to the subheading of this part of the judgment, is founded in Roman law (Justinian’s Corpus Juris Civilis); the great writers of age, Coke, Hale and Blackstone, made no mention of it as part of the common law in the classic texts published by each of these celebrated jurist. In its full form it reads “mater semper certa est, etiamsi vulgo conceperit, pater ver is est, quem nuptia demonstrant”. The surrogate in the instant case, translates this to mean “the mother is always known, even if she conceived out of wedlock, whereas the father is he whom the marriage indicates”. She says that on such basis the maxim does not support the widely held view as to its meaning. In her opinion the underlying assumption which the words convey, and thus the purpose of its use, relates solely to a situation where the genetic and gestational mother is one and the same person. This is supported by the translation as offered, where there is a reference only to conception and not to birth.
How forcefully one can rely upon this reference in support of the submission as made, remains in my view, highly problematic.
“I spoke, my Lords, of a judgment as to the status of a person having a particularly extensive effect. But there is one status for which Parliament, in the wisdom of experience, has made special provision. This is the status of legitimacy. Status means the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities. Such, for example, are the status of married person or of minority. Legitimacy is a status: it is the condition of belonging to a 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 fathers. Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition. Fatherhood, by contrast, is a presumption.”
At the time under Belgian law no legal bond was created between the mother and her illegitimate child from the mere fact of birth but rather maternal affiliation had to be established by voluntary recognition or by court order.
“In so far as it [the judgment in that case] 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.” (p. 338)
Whilst I would agree with these observations, I would with respect go further and at least conclude that no evidence has been produced which satisfies me that the maxim ever formed part of Irish law.
“It follows that there is only sparse and limited authority for the proposition that the maxim mater semper ever formed part of the common law of Ireland.”
Even without authority and disregarding the very public and acrimonious background to the 8th amendment of the Constitution which gave rise to this provision, it is perfectly clear that the focus of the sub-article was the protection of the foetus as it gestated in the womb of the pregnant mother, during the period before its life as an independent person, had been established. In describing the purpose of the provision as I have, I remain ever so conscious of the constitutional position of the mother, acknowledged in this Article but who also of course, as a life in being has the express benefit of Article 40.3.1o and Article 40.3.2° of the Constitution. In this regard I have always thought that the analysis of McCarthy J. in Attorney General v. X. & Ors [1992] 1 IR 1 deserved much more prominence than it seems to have achieved, at least to date.
“40.3.3o “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.”
In essence, this summary reflects the judgments of Denham, Hardiman and Geoghegan JJ., in that case. It is therefore beyond clear that the meaning of the term “mother” in Article 40.3.3o is specific to that provision and ceases to have any application once the pregnancy ends. Consequently, I reject the submission of the appellants that mater semper has constitutional status in this jurisdiction.
(i) to the relationship between a foetus and the mother in whose womb it existed: this could not occur pre-implantation and had to end with delivery: physical connectivity was essential in this regard;
93. In its analysis of the scientific evidence as same has been understood and applied to date, the High Court took the view that chromosomal DNA material has a deterministic influence on the uniqueness of the embryo, which carries into the inheritable characteristics upon which our individual sense of self and identity is based. Using the phrase “blood link” as a proxy for this, the learned judge considered that where competing claims exist as to who the mother is, that issue in circumstances such as these in this case, should be determined via this technical process.
97. The natural mother has in relation to her child, personal rights arising from Article 40.3 of the Constitution, which are based on the natural relationship which she has with her child, giving rise to an instinctive determination on her part to protect and sustain that child. Such a relationship also exists for the child, deriving, at least at the outset from its total dependency on its mother. The range of such maternal rights with corresponding obligations, includes the right to safeguard and care for the child, to have custody of it and to rear and be responsible for its upbringing. These rights give rise to responsibilities which mean, that the natural mother must provide as best she can and in accordance with her means for the welfare of her child, in the broadest possible understanding of these terms.
100. The natural father has no natural rights to his child and the courts have never recognised any such rights: (The State (Nicolaou) v. An Bord Uchtála [1966] 1 I.R. 567 at p. 643) (“Nicolaou”); neither has he any constitutional rights (S.W. and J.K. v. V.W. & Anor [1990] 2 I.R. 437 at p. 447), (“S.W. and J.K. v. V.W.”). The position of such a father is regulated by the 1964 Act as amended by the 1987 Act. Prior to this amendment the natural father could make an application under s. 11 of the Act regarding custody and access issues: pursuant to s. 6A (inserted by s. 12 of the 1987 Act and as amended s. 6 of the Children Act 1997) such a father could thereafter in respect of his child, also apply for guardianship. In so interpreting these provisions, the Supreme Court in S.W. and J.K. v. V.W. rejected a view offered by the High Court (Barron J.), that by reason of the 1987 Act a natural father who otherwise is a fit person in this regard, should not be denied guardianship unless there are circumstances or other good reason involving welfare considerations, which required that he should not be so appointed. That High Court decision, as interpreted by the majority of the Court, presupposed that the father had a right to guardianship defeasible only in the circumstances as therein mentioned. Finlay C.J., with whom three other judges agreed made it clear that the sole purpose of s. 6A was to confer a “right to apply”, for such an order: this was the only “right” so given: nothing more. This description of what the section permitted, which has ever since being so repeated in this way, is a description which I have always struggled to understand. In my view, if such a term was ever appropriate, it is no longer so, as what it conveys for those affected is distressingly dismissive of the intensity of nature’s feeling, which a great number of Irish fathers, also have for their child.
101. Every child, born out of wedlock must, as a human person and by virtue of his own innate being, be held equal before the law (Article 40.1). Such a child, like every other person, has personal rights guaranteed to him and her, under Article 40.3. In addition, at constitutional level, he has in like manner to children born in wedlock, the “natural and imprescriptible rights”, to religious and moral, intellectual, physical and social education, as referred to in Article 42.5 and also the further right, again like all other children, to free primary education as referred to in Article 42.4. (In Re M. (An Infant) [1946] 1 I.R. 334; Nicolaou and G. v. An Bord Uchtála). How these particular rights come to vest in such child is probably better explained by relying on Article 40.3, rather than by some obscure creative means in an attempt to apply directly the provisions in question. Furthermore, in addition to those mentioned there may well be other “natural and imprescriptable rights” which a child has. Finally, in this context the decision of the High Court in M. v. M. (Unreported, High Court, Murphy J., 2nd December 1982), which restricted by narrow description the rights which an illegitimate child shared with his legitimate brother, must now be reviewed in light of the 1987 Act and the more recent case law in this area.
107. It is not suggested by any party to these proceedings, that what is variously described as the “blood link”, the “biological link” or the “natural link”, is not of significance in and to a parent’s relationship with his/her child and vice versa. Its importance however at a scientific level and more crucially at a legal level, has never had to be considered by a court in this jurisdiction before, certainly not in any circumstances comparable to those of the instant case. It would therefore be useful to firstly look as to how this link has been viewed in other situations.
Whilst there is no doubt but that the learned judge meant no offence by his reference to adoptive parents being unable to establish an affinity with, or develop a deep sense of love for the child they wished to adopt, a view which in any event I would strongly disagree with, nonetheless the real importance of what he intended to highlight, was the emotional and instinctive bond which in the vast majority of cases immediately arise from the fact of motherhood. In effect, he was saying exactly the same as his fellow colleagues had, in their respective judgments.
“The blood link between the plaintiff and her child means that an instinctive understanding will exist between them which will not be there if the child remains with the notice parties. A child’s parent is the best person to bring it up as the affinity between them leads to a love which cannot exist between adoptive parents and the child.”
The Chief Justice went on to hold that such right was not an absolute one and had to be balanced against the mother’s right to privacy. As the trial court had not dealt with that issue, the matter was returned to the Circuit Court for that purpose from which the original case had been stated.
“The right to know the identity of one's natural mother is a basic right flowing from the natural and special relationship which exists between a mother and her child, which relationship is clearly acknowledged in the passages quoted from the judgments in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 and in G. v. An Bord Uchtála [1980] I.R. 32.
“This conclusion [no constitutional right to guardianship] does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married.
In so saying he was very much echoing the phraseology used in S.W. and J.K. v. V.W. See also pp. 271 to 273 where Denham J. expressed similar views.
“…where the children are born as a result of a stable and established relationship and nurtured at the commencement of life by father and mother in a de facto family, as opposed to a constitutional family, then the natural father, on application to the Court under s. 6A of the Guardianship of Infants Act, 1964, has extensive rights of interest and concern.” (pp. 269 and 270)
“209 … The importance of family and marriage and quite frankly also the biological link should not be minimised. It is common knowledge that in the case of so many adoptions, the adopted children at some stage want to see their real parents. Many people, I suspect, would consider that there is an appreciable advantage for a child to be reared within a natural family and having real parents and real aunts and uncles.
“312 I turn then to the central importance of the family, founded by marriage and the natural blood links and relationship between Ann and the applicants. I am in entire agreement with the judgments of Hardiman and Geoghegan JJ. on these issues. I can, therefore, state my own views briefly.
Fitzgibbon L.J., at p. 240 expressed similar sentiments:-
‘I would never, except for the strongest reasons, deprive the mother of the duty and the right to direct, control, and educate her child under twelve years of age.’
315 As recently as July of this year, Baroness Hale of Richmond, in speaking for a unanimous House of Lords in In re G. (Children) [2006] UKHL 43, [2006] 1 WLR 2305, cited the latter statement among a number of other authorities representing a statement of the principle of paramountcy of the welfare of the child prior to modern English legislation. With due deference to the very different circumstances of a case concerning the custody of a child born to one partner in a lesbian couple, a case as far removed from the present as it is possible to imagine, it is instructive to note the importance attached to the natural relationship. There is no legal presumption, in modern English law, in favour of natural parents. Baroness Hale identified the elements of genetic, gestational and social and psychological parenthood and continued at para. 36, p. 2316:-
‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.’
In the curial part of her speech, she stated:-
‘in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique.’
Lord Nicholls of Birkenhead, concurring, stated at para. 2, p. 2307:-
‘the fact that C.G. is the natural mother of these children in every sense of that term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.’
The House of Lords reversed the decision of the Court of Appeal and awarded custody.
‘In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason. Where such a reason exists the judge should spell this out explicitly.’
“[299] … …
[300] The notion of "rights of interest or concern" has not been further analysed. In its context, it is an expression designed to lay emphasis on the interests of the child and not to confer any distinct rights on the father.
3. The strength of the father's case [unmarried], which is described in the three judgments from which I have quoted as consisting of "rights of interests or concern," will depend on an assessment of the entirety of the circumstances, of which the blood link is one element, whose importance will also vary with the circumstances; in some situations it will be of “small weigh”;
I respectfully agree and could add several other candidates who would fit comfortably into the social and psychological role.
“33. There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child’s welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is “his” child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child: see, for example, the psychiatric evidence in In re C (MA) (An Infant) [1966] I WLR 646. For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.
36. Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much close to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.”‘A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child’s psychological needs for a parent, as well as the child’s physical needs. The psychological parent may be a biological, adoptive, foster or common law parent.’
Such an input into creation is so integral that it must command constitutional protection. Likewise, from the standpoint of the children. The relationship thus created flows in both directions. Therefore, I am satisfied that rights at the highest level of our legal order are in place in the circumstances as outlined. This means that the natural and human association between mother and child and child and mother must be recognised in law, in a way that reflects the fundamental reality of the situation.
‘That chromosomal DNA material has a deterministic influence on the uniqueness of the embryo, which carries into the inheritable characteristics upon which our individual sense of self and identity is based’.
