A Supreme Court judge would allow the State’s appeal against declarations that Mrs R. was the mother of twins born through surrogacy, but would declare that she and the children had constitutional rights requiring recognition and vindication.
Mr Justice William McKechnie delivered his judgment on 7 November 2014 in an appeal under section 60(8) of the Civil Registration Act 2004. The case concerned twins born on 13 September 2008 after Mrs R.’s ovum was fertilised with her husband’s sperm and the embryo implanted in her sister, the notice party. The twins went home with Mr and Mrs R. after birth, and the judgment said they had been cared for by them since.
The birth register named Mr R. as father and the notice party as mother. An application to substitute Mrs R. as mother was rejected by the Registrar in June 2011. The High Court later declared that Mrs R. was the children’s mother under section 35(8)(b) of the 1987 Act and entitled to have the birth records amended. The State appealed.
McKechnie J. concluded that the 1987 Act did not provide for a case where the genetic and gestational mothers were different people. He also rejected the State’s submission that the maxim “mater semper”—that the person who gives birth is the mother—had constitutional status. In his view, the maxim did not govern this divided situation.
The judge said the medical evidence supported the significance of Mrs R.’s genetic contribution, while acknowledging that the notice party’s role in gestation was essential and should not be overlooked. He considered Mrs R.’s deliberate participation in the reproductive process, together with her genetic contribution, gave rise to a relationship with the children deserving constitutional recognition under Articles 40.1 and 40.3.
He said the State had not met its obligation to recognise and vindicate those rights. Adoption or a possible guardianship application would not, in his view, be an adequate answer. Given the complexity of assisted reproduction and the policy questions involved, he said the Oireachtas should have the first opportunity to decide how the rights should be recognised, with recourse to the courts if it failed to act.
The judge’s proposed disposition was to allow the appeal and make a declaration that Mrs R. and the children had rights under Article 40 that must be recognised and vindicated in a way reflecting their relationship. This is McKechnie J.’s individual judgment; the supplied source does not state the Supreme Court’s overall disposition or the terms of any final order by the Court.