Government is due to publish legislation on surrogacy this year

Wednesday 30 January 2013 23.42
Mr Justice Henry Abbott asked if there was any plans by the Government to introduce legislation to deal with issues related to surrogacy
Mr Justice Henry Abbott asked if there was any plans by the Government to introduce legislation to deal with issues related to surrogacy

The Government is to address the area of surrogacy in new legislation due to be published later this year, the High Court heard today.

The State is opposing an application made on behalf of twins born to a surrogate who wish to have their genetic mother’s name on their birth certificate.

In her submissions to the court on behalf of the State, Mary O'Toole SC said the Minister for Justice intends to publish the heads of a Bill entitled Family Relationships and Children Bill.

Ms O'Toole said part of the proposed legislation will deal with assisted human reproduction, including issues such as surrogacy, in a case where the court has imposed strict reporting conditions on the media in order to protect the identity of the parties involved.

She made the comments in response to questions from Mr Justice Henry Abbott who asked if there was any plans by the Government to introduce legislation to deal with issues related to surrogacy.

If there were plans to introduce legislation, the judge added, he was minded to adjourn the case before him.

The judge raised the issue after Ms O'Toole told the court it could not ignore the constitutional definition of motherhood, which was that the person who gives birth to a child is defined by law as that child's mother.

The only way that this could be deviated from is if legislation allowing parental rights to be transferred in the manner sought by the applicants was introduced, she said.

In reply to the judge's question, Ms O’Toole said plans to legislate the area of assisted human reproduction were included in the current Programme for Government.

The minister intended to publish proposed legislation in 2012, but that had not been possible.

The court heard this was because the Government had to deal with the implications of the AB&C-judgment, which related to the privacy rights of three Irish women who travelled to the UK for an abortion, delivered by the European Court of Human Rights.

Minister Alan Shatter intends to take on board findings of both the Law Reform Commission, the Commission on Assisted Reproduction, which in 2005 made a number of recommendations to government for legislation in the area of assisted reproduction, and practices in other jurisdictions in the preparation of the bill, Ms O'Toole added.

Guidelines in the area of surrogacy were issued by the Government last year following an unrelated case where the father of a child born to a surrogate mother outside the State brought an action aimed at securing a passport for the infant, the court also heard.

In her submissions asking the court to dismiss the application, Ms O'Toole said the State rejected any idea that genetics were the "triumphing factor" when it came to determining the parenthood or guardianship of children, irrespective of the fact that in this case the surrogacy arrangement had been planned by the parties involved.

While the State was not taking any steps to undermine or hinder the applicant's living together as a family as the law currently stands the court could not accede to their requests.

She was replying to submissions made on behalf of the applicants Gerard Durcan SC who said that the twins are being deprived of their right to be part of a constitutional family while the law fails to recognise their biological mother.

The State's failure to recognise the genetic mother who provided the embryo with her husband was a failure to protect and vindicate their constitutional rights to form a legal family.

In their action, the children are seeking declarations under the Status of Children Act that their genetic mother is their mother, and that she is entitled to be registered as their mother and have the register of births corrected to reflect their true parentage.

They want the court to order An t-Árd Chláraitheoir to correct the register of births to reflect this.

They are also seeking a declaration that the continued failure to recognise the father and genetic mother of the children is unlawful, and fails to vindicate their Constitutional rights.

In the alternative they seek a declaration that the father and genetic mother are the children's guardians.

The surrogate mother is supporting the couple's application, which was refused by the office of An t-Árd Chláraitheoir in 2011, on the ground that there is no legal basis to change the name of the mother on the birth certificate from the surrogate mother to the genetic mother.

The Attorney General and the Office of the An t-Árd Chláraitheoir are opposing the action, on grounds including that the surrogate or gestational mother is in law the mother of the child.

The case continues.