The Supreme Court considered whether the genetic mother of twins born through a surrogacy arrangement could be recognised as their mother under Irish law and on their birth certificates. The appeal challenged a 2013 High Court ruling in favour of the genetic mother. In the judgment provided, Justice Clarke set out his own analysis and proposed orders, while expressly noting that his view did not command a majority.
The twins’ genetic parents and the birth mother, who is the genetic mother’s sister, agreed that the genetic mother should be regarded as their mother in law. The genetic mother could produce ova but was unable to carry a pregnancy. The twins were conceived using her ova and their genetic father’s sperm, then carried and delivered by the birth mother. The State’s position was that the birth mother alone was entitled to be registered as their mother.
The High Court had declared the genetic mother to be the twins’ mother and said she was entitled to have her maternity recorded on their birth certificates. The State appealed that ruling. On appeal, the State argued that the law treated the woman who gave birth as the mother, while the family argued that genetic parentage and the Status of Children Act 1987 supported recognition of the genetic mother. The birth mother supported the family’s position. Equality and human rights bodies participated as amici curiae.
Justice Clarke concluded that the common law had not confined motherhood to the woman who gave birth. In his view, it had historically treated the genetic and birth mothers as the same person because science could not separate those roles. He found that neither the 1987 Act nor the Civil Registration Act 2004 clearly changed that position, and that the Constitution did not require a different approach. He considered that, pending legislation, both women had some of the legal characteristics of mothers.
He stressed that the judgment addressed the law as it stood, not what the law should be. He said comprehensive legislation was needed to address surrogacy arrangements and the legal status of children born through them. He did not issue a majority ruling or final order in this judgment. Clarke J. said he would have proposed declaring the genetic mother to be the twins’ mother without affecting the birth mother’s status, and directing the registrar to take steps to reflect that status in the birth registration. He also said further submissions would have been needed on the precise order, given the administrative difficulties.