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M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An... http://www.bailii.org/ie/cases/IESC/2014/S60.html S60 [Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] Supreme Court of Ireland Decisions 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-Chláraitheoir & ors [2014] IESC 60 (07 November 2014) URL: http://www.bailii.org/ie/cases/IESC/2014/S60.html Cite as: [2014] IESC 60 [New search ] [ Help ] Judgment Title: M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors Neutral Citation: [2014] IESC 60 Supreme Court Record Number: 263/2013 High Court Record Number : 2011 46M Date of Delivery: 07/11/2014 Court: Supreme Court Composition of Court: Denham C.J., Murray J., Hardiman J., O'Donnell Donal J., McKechnie J., Clarke J., MacMenamin J. Judgment by: Denham C.J. Status of Judgment: Approved Judgments by Link to Result Concurring Judgment Denham C.J. Link Appeal allowed - set aside High Court Order O'Donnell Donal J. Hardiman J. Link O'Donnell Donal J. Link Hardiman J. Clarke J. Link MacMenamin J. Link O'Donnell Donal J. Outcome: Allow And Set Aside Notes on Memo: Judgments also from Mr. Justice Murray, Mr. Justice Hardiman and Mr. Justice McKechnie 32 THE SUPREME COURT APPEAL No 263/2013 1 di 66 12/11/2014 18:39 M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An... http://www.bailii.org/ie/cases/IESC/2014/S60.html Denham C.J. Murray J. Hardiman J. O’Donnell J. McKechnie J. Clarke J. MacMenamin J. IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 60(8) OF THE CIVIL REGISTRATION ACT, 2004, AND IN THE MATTER OF THE CONSTITUTION OF IRELAND AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964, AND IN THE MATTER OF THE STATUS OF CHILDREN ACT, 1987, AND IN THE MATTER OF M.R. AND D.R. (CHILDREN) BETWEEN M.R. AND D.R. (SUING BY THEIR FATHER AND NEXT FRIEND O.R.), O.R. AND C.R. APPLICANTS/RESPONDENTS and AN tARD-CHLÁRAITHEOIR, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS/APPELLANTS and L.L. (NEE M.) NOTICE PARTY Judgment delivered on the 7 th day of November, 2014 by Denham C.J. 1. This appeal arises to be decided at a time when there have been radical scientific developments in assisted human reproduction which have not been addressed in legislation. The Court was informed that, a few days before the hearing of the appeal commenced, the Department of Justice published the Draft Heads of a General Scheme of a Children and Family Relationships Bill, 2014, of which Part 5 purported to make provision for surrogacy arrangements. However, this is not an Article 26 Reference, there is no challenge to the constitutionality of any Act of the Oireachtas, and the appeal must be decided on the law as it stands. 2. At the core of the case is the application by the applicants/respondents that the fourth named applicant/respondent be registered as the mother of the first and second appliants/respondents. This case arises out of a surrogacy arrangement whereby the fourth named applicant/respondent is the genetic mother of the children, and the notice party is the gestational mother. The State appellants submitted that the gestational mother is the mother for the purpose of the Civil Registration Act 2004, while the applicants/respondents submitted that the genetic mother should be so registered. Appeal 3. This is an appeal by An tArd-Chláraitheoir, Ireland, and the Attorney General, the respondents/appellants, referred to as “the appellants”, from the judgment of the High Court (Abbott J.) delivered on the 5 th March, 2013, and from the orders of the High Court made on the 16 th May, 2013, and perfected on the 23 rd May, 2013. Background facts 4. I adopt the background facts as set out by the learned High Court judge. 5. In this appeal the term “genetic father” refers to the man who provides the sperm which is used in the fertilisation process. In this case the third named applicant/respondent, referred to as the “third 2 di 66 12/11/2014 18:39 M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An... http://www.bailii.org/ie/cases/IESC/2014/S60.html named respondent”, is the genetic father of the first and second named applicants/respondents, who are referred to as “the twins”. 6. The term “genetic mother” refers to the woman who provides the ovum which is used in the fertilisation process. In this case the fourth named applicant/respondent referred to as the “fourth named respondent”, is the genetic mother. 7. The term “gestational mother” refers to the woman in whose womb the zygote is implanted, who carries and subsequently gives birth to a child. In this case the notice party is the gestational mother. 8. The fourth named respondent was unable to become pregnant and to give birth and so by arrangement with the notice party, her sister, ova provided by the fourth named respondent were fertilised by sperm provided by the third named respondent. That fertilisation took place in vitro . The zygotes which were produced as a result of that fertilisation were implanted in the womb of the notice party, who subsequently gave birth to the twins. 9. The third and fourth named respondents and the notice party agreed prior to the birth of the twins that they would be brought up and would be reared as children of the third and fourth named respondents, and that is what has occurred. 10. There is no dispute between the genetic parents and the gestational mother as to how they wish the twins to be treated in fact and in law. However, the State authorities take the view that, as a matter of law, the person who must be registered as the mother of the twins is the gestational mother. 11. After the birth of the twins, the notice party and the third named respondent attended the Registrar’s Office and were registered as the parents. Following registration, a letter accompanied by DNA evidence was sent to the Superintendent Registrar for Dublin seeking the correction of an error under s.63 of the Civil Registration Act, 2004. This request to have the fourth named respondent recorded as the mother of the twins was refused. 12. There is no dispute as to the fact that the third and fourth named respondents are respectively the genetic father and the genetic mother of the twins. Nor is it disputed that the notice party is the gestational mother of the twins. 13. All named applicants/respondents are referred to collectively as “the respondents”. High Court Judgment 14. In a very broad ranging judgment the learned High Court judge considered matters of fact, the common law, statutory law and the Constitution. He reached the following conclusions on the law:- “100. The maxim mater semper certa est is part of a series of maxims relating to maternity and paternity arising from the ancient Roman law. It can be said that the maxim achieved such prominence, acceptance and fixity by reason of the fact that before IVF the mother of the baby was determined at parturition or birth and the maxim (being an incontrovertible truth) expressed the facts of the situation. In the parlance of the common law the maxim became a presumption at law and in fact. Because it was based on incontrovertible facts, it became an irrebuttable presumption in any court proceedings. That meant that motherhood would be presumed in respect of a baby as between a woman and that baby once parturition of that baby was proven in relation to the woman. No other evidence or argument was required. The matter was self evident. No evidence could be adduced to controvert this presumption. If perchance evidence could be permitted by the law to be introduced to controvert this conclusion, then the presumption would change from being irrebuttable to rebuttable. The presumption could be rebutted by whatever evidence was appropriate. Prior to surrogacy arrangements, this possibility of the rebuttal of mater semper certa est did not arise. The fundamental issue in this case is whether, in the circumstances of this case of surrogacy, such a possibility arises within the current legal and constitutional framework of this jurisdiction. 101. In examining what the answer should be to the question posed by this issue, it is best 3 di 66 12/11/2014 18:39 M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An... http://www.bailii.org/ie/cases/IESC/2014/S60.html 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.

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