A Supreme Court judge agreed that the State’s appeal in a surrogacy registration case should be allowed and the High Court declarations reversed, but said he would also have remitted the case to consider appointing the children’s genetic parents as guardians.
John MacMenamin J.’s judgment, dated 7 November 2014, was a separate set of observations in the appeal. He agreed with the order proposed by Chief Justice Denham and Justices Hardiman and O’Donnell. The judgment does not state the court’s final order as a whole; MacMenamin J. set out the order he personally would have favoured.
The case concerned twins born following an arrangement in which the sperm of O.R. and the egg of his wife, C.R., were implanted in C.R.’s sister, identified in the judgment as the birth mother. The twins lived with the genetic parents. The birth mother had been registered as their mother, and the Registrar refused a request to register the genetic parents instead.
The High Court had declared under the Status of Children Act 1987 that C.R. was the twins’ mother. It also declared that the State’s continued failure to recognise C.R. and O.R. as the children’s mother and father was unlawful and failed to vindicate their constitutional rights. The State appealed those declarations.
MacMenamin J. concluded that the statutory references to “mother” were tied to pregnancy and birth, and that the existing legislation did not support substituting genetic maternity for birth motherhood in the registration scheme. He considered that changing the approach raised wider questions about parental duties, children’s interests and legal certainty that required legislation. He rejected the argument that the registration system was invidiously discriminatory.
He nevertheless considered that the children’s legal position and interests could warrant further steps. He said guardianship and adoption had not been fully explored, and would have remitted the matter to the High Court to consider whether O.R. and C.R. should first be appointed guardians, potentially as a preliminary to adoption. He described that proposed course as an exceptional use of the High Court’s inherent jurisdiction. This was his proposed order, not the order stated as having been made by the Supreme Court.
The judgment also discussed European human-rights decisions on surrogacy and said they distinguished the interests of commissioning parents from the rights of children. MacMenamin J. said he would allow the appeal and reverse the High Court declarations, while remitting the guardianship question. The supplied judgment is his individual judgment and does not provide the full court’s final order.