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Judgment
Title:
M.R & anor -v- An tArd Chlaraitheoir & ors
Neutral Citation:
[2013] IEHC 91
High Court Record Number:
2011 46 M
Date of Delivery:
03/05/2013
Court:
High Court
Judgment by:
Abbott J.
Status:
Approved

Neutral Citation No: [2013] IEHC 91

THE HIGH COURT
[2011 No. 46 M]

IN THE MATTER OF AN APPEAL PURSUANT TO S. 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 MR AND DR (CHILDREN)




BETWEEN

MR AND DR (SUING BY THEIR FATHER AND NEXT FRIEND OR) AND OR AND CR
APPLICANTS
AND

AN tARD CHLARAITHEOIR, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Henry Abbott delivered the 5th day of March, 2013

1. In the proceedings the applicants are seeking the following:

        1. A declaration that CR is the mother of MR and DR pursuant to section 35(8)(b) of the Status of Children Act, 1987 or otherwise pursuant in the inherent jurisdiction of this Honourable Court;

        2. A declaration that the continued failure to recognise and acknowledge CR and OR as parents of MR and DR is unlawful, and fails to vindicate and protect the constitutional rights of the Applicants, in particular pursuant to the provisions of Articles 34, 40.4.1 and 40.3.2 and 41 of the Constitution;

        3. A declaration that CR is entitled to be registered as the mother of MR and DR, and to have the Register of Births corrected to reflect their true parentage;

        4. If necessary an order directing an tArd Chlaraitheoir to correct the Register of Births so that it records OR as the father and CR as the mother of MR and DR;

        5. If necessary, a declaration that CR and OR are the guardians of the MR and DR, and then;

        6. In the alternative an order pursuant to Section 6A of the Guardianship of Infants Act 1964 (as amended), or otherwise pursuant to the inherent jurisdiction of this Honourable Court appointing CR and OR as the guardians of MR and DR.

2. The central legal issue to be addressed is who, in law, is entitled to be treated as the parents of the twins and to carry out the duties, and to exercise the functions which follow from that status. In particular, who, in law, is to be treated as the mother of the twins.


BACKGROUND FACTS
3. In this case the term “genetic father” refers to the man who provides the sperm which is used in the fertilisation process. The term “genetic mother” refers to the woman who provides the ovum which is used in the fertilisation process. The term “gestational mother” refers to the woman in whose womb the zygote is implanted, who carries and subsequently gives birth to a child.

4. OR and CR are a married couple. CR was unable to give birth in the normal way, so by arrangement with her sister, the notice party, ova provided by CR were fertilised by sperm provided by her husband OR. As a result of that fertilisation, which took place in vitro, the twins, MR and DR, were created. 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. The applicants had agreed prior to the birth that the two children, the twins, would be brought up and would be reared as the children of the CR and OR, and in practice that is what has happened. OR is the genetic father, CR is the genetic mother and the notice party is the gestational mother.

5. There is no dispute between the genetic parents and gestational mother as to what should happen and how they would wish these children to be treated in fact and in law. The difficulty arises because the State authorities take the view that as a matter of law the person who must be treated as the mother of the twins is the, the gestational mother. After the birth of the twins the notice party and OR 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 was refused.

EXPERT WITNESS EVIDENCE

Doctor Molony
6. Dr Clíona Molony is a principal investigator directing research on genetics for Merck Pharmaceuticals and is an adjunct lecturer in genetics and statistical genetics at Brandeis University, Boston, Massachusetts. She has been involved in 25 publications on the issue of genetic analysis to dissect underlying genetics of human conditions.

7. Dr. Molony stated that the uniqueness of the human being is complete at fertilisation when the sperm and ovum have come together. The sperm is from the genetic father and the ovum is from the genetic mother. They provide the “full compilation of genetics that then ultimately give rise to who we are.” She added that “DNA…ultimately controls everything”.

8. She acknowledged while the gestational mother may affect the foetus in a molecular way she does not alter the DNA. She explained that the DNA does not change, however, the manner in which genes find expression is controlled by epigenetics. Epigenetics is a process of gene expression whereby some genes are turned on and some genes are turned off. What happens in the womb can activate or deactivate certain genetic traits in the baby. It is the environmental component which can change more elastically over time relative to DNA “which is directly inherited and relatively unchanged generation to generation”.

9. Dr. Molony emphasised that the DNA sequence is not altered itself by epigenetics and stated that “the expected epigenetic changes…introduced during…the gestational period have been shown to be actually reversible postnatally”. However, they have not proven to be reversible in every case. On cross examination she was asked about experiments in which the gestational mother was experiencing stress and the glucocorticoid receptor genes involved were methylated (turned down), so that the child had a much stronger reaction to stress. Dr. Molony responded that there was the possibility, based on animal models, that if those offspring had been cross fostered into another family, the effect of the experiences and environment that that offspring had been exposed to postnatally could be reversed. In other words the person who looks after the child after birth also has epigenetic effects on the child.

10. Another way in which the gestational mother may affect the foetus is microchimerism, which Dr. Molony described as the presence of cells in the body which are “not of oneself”. It involves the migration of the mother's cells into the child. This transfer of cells occurs between the foetus and the gestational mother through the placenta and she highlighted that it does not change the core DNA of the child – the DNA remains the same. She also said it is thought that microchimerism could be considered a risk factor for autoimmune diseases “but that ultimately it is against the backdrop of maybe their own immune profile encoded based on their own genes.” Microchimerism applies between gestational mother and foetus but the number of cells that exist after separation is extremely small – taking specialised techniques to find them. She believes the cell count to be in the order of 1:100,000,000.

11. Regarding the impact that environment can have on the foetus reference was made to a Swedish study conducted by Bygren on a population group who were susceptible to famine followed by abundance during the 1800's. He identified on the male line those persons who were descended from people who lived during the period of abundance and his study suggested that the descendents of those feasting lived significantly shorter lives than persons who lived during periods of famine. Following this it was put to Dr. Molony that that the gestational mother can materially affect the way a gene expresses itself in the individual foetus that she is carrying and that change could possibly be carried on to future generations of that foetus. Dr. Molony responded that it could as long as there were no other environmental influences present to reverse it. She said of the study that the expectation is there that there would be some epigenetic influences “but the actual mapping of those events and what gave rise to them hasn't really been elucidated.”

12. Dr Molony was of the opinion that the gestational mother “provides an environment that enables the embryo and foetus to grow, which interacts overall with the underlying genetic make-up.” There is no evidence as to whether the epigenetic effects that take place after birth are any greater or less than the epigenetic effects that take place before birth.

Professor Green
13. Professor Green is a consultant clinical geneticist and has been the director of the Centre for Genetics in Our Lady’s Hospital, Crumlin since 1997. He also holds a professorship of Medical Genetics at University College Dublin and was a member of the Commission on Assisted Human Reproduction (the “Commission”) which produced a report in 2005. The Commission was set up to report on possible approaches to the regulation of all aspects of assisted human reproduction and the social, ethical and legal factors to be taken into account in determining public policy in this area. During the Commission the issue of surrogacy was discussed and it was recommended, with one member dissenting, that surrogacy should be permitted and should be subject to regulation by a regulatory body. The Commission was of the opinion that what all parties intended from the outset of the arrangement should form the basis of recommendations on legal parentage in cases of surrogacy. However, in cases where the birth mother has a genetic link with the child a minority held the view that surrogate mother would be presumed to be the legal parent of the child.

14. Professor Green stated that the genome sequence – the entirety of an individual’s hereditary information – is complete on fertilisation and that the genes we inherit are fundamental to us. While these genes are an extremely important part of our development he says that they are not the whole part. He acknowledged that the child’s genetic parentage plays a large role in its identity and is one of the main factors in terms of determining who a person is. He commented that he doesn’t subscribe to genetic determinism – the view that everything about us is determined by the DNA sequence given to us by our parents. He sees it as very important but notes that there are other factors.

15. He agreed with Dr. Molony’s evidence and said that the gestational mother will influence the development of a child within her womb through diet and epigenetics. He added that the gestational mother is not “simply a vehicle for carrying” the foetus and explained that she has a number of influences on the development and the actual outcome in terms of characteristics of the child.

16. One of the recommendations in the Commission’s 2005 report regarding surrogacy was that “the child born through surrogacy should be presumed to be that of the commissioning couple”. On cross examination he said that he agreed with this recommendation. He explained that parentage follows the genetic link and the intention and he sees these as important factors which allowed him to come to the above conclusion regarding surrogacy. He commented that it is very important to have 1) genetic input and 2) intent with the consent of the surrogate. This recommendation by the Commission, he agreed, highlights the basic importance of the genetic input. During the Commission he said that the issue of epigenetics was not discussed and he feels that this factor would need to be considered now, however, he has not changed his view since the report in 2005.

An tArd-Chláraitheoir
17. Mr Feely is an tArd-Chláraitheoir, the Chief Officer of the system of civil registration in Ireland. He began by explaining that under the Status of Children Act, 1987 where the parents are married there is a presumption of paternity on the part of the woman’s husband. Where a man is not married to the mother, under s. 22(1) of the Civil Registration Act, 2004 he is not required to give information to the Registrar. In such cases where it is proposed to do so, the mother and the father may attend at the Registrar's office and provide a declaration to the Registrar that he is the father. This is what occurred in the present case. Section 30 of the 2004 Act provides that the hospital must notify the Registrar of the details of the birth. Mr. Feely stated that the registration of the twins birth coincided with the details that had been notified to the office by the hospital adding, however, that the hospital could not as part of the standard form incorporate information that this was an unusual matter.

18. Following registration a letter was later sent to the Superintendent Registrar for Dublin seeking the correction of an error under s. 63 of the 2004 Act. This was accompanied by DNA evidence proving that CR was the genetic mother of the twins and a letter from the IVF Clinic describing what transpired. As a result Mr. Feely decided to carry out an enquiry under s. 65 and subsequently decided that he did not have the power to make the correction that was requested. He received legal advice that the principle of mater semper certa est is the correct principle to follow. He said that he could not see any grounds on which he could depart from that principle despite the fact that the DNA tests were proof of what he had been told concerning the method of conception and pregnancy and despite the fact that he was satisfied that L was not the biological mother of the twins

19. On direct examination he was asked what the consequences for the birth registration system would be if the genetics of the baby had to be enquired into at the date of birth. He replied that the benefits of the current system are “that there is simplicity and certainty surrounding it.” He added that if genetics had to be enquired into before a birth could be registered he believed it would create “an enormous amount of uncertainty” and “present very practical challenges” as there would be considerable expense involved. Following on from this Mr Feely highlighted that he had reservations about DNA testing and commented that such tests provide strong evidence “provided a close relative of this person is not implicated in the paternity.”

20. When questioned about the rebuttable presumption surrounding paternity and whether the same considerations should simply be transposed to issues of maternity, Mr Feely responded that “the fact of motherhood is a legal fact” while “paternity is a rebuttable presumption”. They are, he said, “conceptually different.”

21. On cross examination Mr Feely acknowledged that dealing with surrogacy situations was a rarity in his office. When asked if there are any guidelines in the office to deal with the situation he replied that the principle of mater semper certa est is followed but that it is not incorporated into any regulations or guidelines. He was made aware of this principle by his predecessor when he took office. He agreed that the advice had been passed on to him viva voce and the principle had been reduced to writing only in the form of legal advice. It had not, however, been reduced to any document – either formal or informal – in his office. He also agreed that the reason he could not act on the DNA results and make changes in the register or make a new entry in the register was due to the legal advice he was given that the whole matter was governed by the principle of mater semper certa est.

Doctor Breathnach
22. Dr. Breathnach is a practising consultant obstetrician at the Rotunda Hospital and is a senior lecturer in maternal foetal medicine with the Royal College of Surgeons. She is a qualified specialist in obstetrics and gynaecology with an additional post graduate specialist qualification in the field of maternal foetal medicine.

23. According to Dr. Breathnach the gestational mother’s role is “beyond essential”; she stated that “the offspring cannot exist without the biological contribution that the birth mother makes through pregnancy.” She described how the gestational mother affects susceptibility to infection as there is a significant transfer of antibodies from mother to foetus across the placental barrier. This transfer results in immunity to common viral infections such as rubella and chicken pox and to other diseases such as whooping cough. She stated that the baby is born having passively inherited immunity from the maternal circulation and that immunity is subsequently lost when a baby is about three months of age. This immunity is independent of the genetic connection between the conception and the birth mother.

24. On cross examination she agreed that the embryo’s genetic material drives the initial process whereby the embryo implants in the uterus. The embryo has to attach itself to the wall of the uterus and the initial cell group that develops is destined to be the placenta. These cells, developing from the embryonic cells, invade maternal tissues (maternal blood vessels in the lining of the uterus) and they drive an adaptive change in the maternal blood vessels. This allows those vessels to become wider to allow for enormous blood flow to the placental bed during pregnancy and this invasion of cells is a continuous process throughout pregnancy. It allows for the transfer of very vital constituents from mother to foetus.

25. Once the placental architecture has been built, placental blood flow, which influences or very closely correlates with foetal growth and foetal size, can be impaired by issues such as maternal smoking or high blood pressure in the birth mother. Dr. Breathnach told the Court that there are a whole host of inherited or acquired clotting abnormalities that affect blood flow to the placenta. She stated that the intrauterine environment “informs almost every outcome of the pregnancy.” She explained that there are consequences to timing of delivery and the timing of delivery is very frequently driven by the health of the uterine environment. If the environment is healthy then one can anticipate that a baby will deliver at full term in good condition. However, if the environment is unhealthy then the baby may die in utero or result in pre-term delivery.

26. Finally, she said that one can observe blood flow patterns in utero and one may witness a baby shutting down its kidneys and centralising its blood flow to the brain – the baby is adapting to stress by preserving its brain and shutting down blood supply to less vital organs in an adaptive way. She added that the trigger for this foetal adaptive process unknown agreeing that it is likely to be a physiological response to impaired blood flow.

Doctor Wingfield
27. Dr. Wingfield is a consultant in obstetrics and gynaecology in Holles Street Hospital and is the clinical director of the Merrion Fertility Clinic. She is also honorary secretary of the Irish Fertility Society and has a specialist interest in reproductive medicine and in endometriosis. Initially she trained in Ireland in infertility and then spent three years in Australia working in IVF and doing research in endometriosis. She has no direct experience of surrogacy but has advised parents who need surrogacy services.

28. She stated that previously, before 2008, it was easy for Irish couples to access surrogacy services in the UK. But the law changed and now one must be a resident in the UK to access such services. She noted that there is no legislation in Ireland and due to this lack of legal certainty in Ireland most clinical directors tend not to get involved in surrogacy arrangements. She said that the advice given to clinical directors and practitioners working in infertility has been “very complex legally”. She is not aware of clinics in Ireland currently facilitating surrogacy and added that couples usually travel abroad.

29. Dr. Wingfield was on the Commission for Assisted Human Reproduction. She highlighted that none of the recommendations contained in the Commission’s Report have been adopted. She commented that there has been no change in legislation apart from the introduction of the EU Tissues and Cells Directive which governs quality systems predominantly in assisted reproduction clinics but nothing has been done regarding its implementation. Presently, in Ireland it is up to individual clinics to implement what they feel is right. Guidelines were drawn up in 2011 by the Irish Fertility Society which encompasses all but one of the Irish IVF clinics. She stated that the guidelines mirror most of the guidelines in the Commission’s 2005 Report.

30. Like Prof. Green she agrees with Recommendation 33 of the Commission that “the child born through surrogacy should be presumed to be that of the commissioning couple”. She is of the opinion that the commissioning couple should be the ultimate parents. She noted that majority of the Commission felt that the presumption should be in favour of the commissioning couple. On cross examination she agreed that the Commission took the view that the law required a flexibility, the flexibility given by a presumption, to deal with the advances of medicine.

31. She said that “one of the problems in Ireland is we don't have a clear mechanism, but there needs to be a clear mechanism whereby the commissioning couple can become the legal parents.” She also clearly stated that legislation is badly needed and that it is “tragic” that a couple have to resort to the High Court to resolve issues of surrogacy.

ORAL SUBMISSIONS OF THE APPLICANTS
32. The applicants begin by making a number of observations. Firstly, they observe that surrogacy arrangements are unregulated by statute in this jurisdiction and that no provision of Irish law prohibits such agreements. The surrogacy agreement entered into in this case was not an unlawful agreement; the arrangement was a completely altruistic act. Secondly, neither the Constitution nor the Guardianship of Infants Act, 1964, as amended, expressly sets out and defines in law who is to be treated as the mother of a child save that s. 2 of the 1964 Act provides that the term mother “includes a female adopter under an adoption order”. Thirdly, scientific developments in the area of assisted human reproduction have brought about situations where there would not necessarily be coincidence between the identity of the genetic mother and the gestational mother. The applicants submit that in such circumstances it falls to the Court to define who, in law, is entitled to the status of parent or mother.

33. The applicants state that if the twins are, in law, the children of the genetic mother, and the genetic mother is married to the father of the twins, they are therefore a family. A mother who is married with her husband is the joint guardian of their children and they are jointly entitled to custody of their children. If, however, the twins are, in law, the children of the gestational mother – given that the father of the children was not married to the gestational mother – she would be in law their parent and would also be their guardian, their sole guardian, and would also in law be entitled to their custody as against anybody else.

34. The applicants highlight the undesirability of the current situation where the factual circumstances on the ground indicate that one particular set of parents and children are operating as a family but the legal status lies in another particular group. The situation is undesirable as if the genetic mother is not recognised in law as the mother then there will be issues around medical procedures, travelling and schooling. Were the twins to suffer an injury or an accident which required them to be brought to a hospital CR, the genetic mother, would not be a guardian and would not be able to give the necessary directions to hospital staff in regard to carrying out medical procedures. There are also significant implications in terms of succession rights. Under the Succession Act, 1965 a child enjoys certain rights on intestacy in regard to their parents' estate. If in fact the twins are, in law, the child of the surrogate mother, that right to a share in the estate on intestacy would exist in regard to her estate as opposed to having a right in the share of the genetic mother's estate. There is also the matter of gifts as between the genetic mother and the children, for taxation purposes, the twins would be treated not as children but as nieces.

35. It is submitted that in this case the protection and vindication of the rights of the applicants requires the Court to adopt a definition of the term mother which does not exclude a genetic mother in the circumstances of CR. The appropriate response of the law to these radically changed circumstances in regard to parentage in general, and motherhood in particular, must be considered in light of the long standing approach of the courts to the existence and preservation of the natural bond or link between parents and their children. For over 100 years the courts in this jurisdiction have recognised the importance and the existence of what has been termed by the courts as a “blood link” between children and parents.

The Blood Link
36. The importance of the blood link has long been recognised by the Irish courts. This is clear from the judgment of Fennelly J. in the Supreme Court in N v. Health Service Executive [2006] 4 IR 374 (the Baby Ann case), where he says at paras. 312 – 314:

        “I turn then to the central importance of the family, founded by marriage and the natural blood links and relationship between Ann and the Byrnes…Article 41 speaks of the rights of the family being “antecedent and superior to all positive law… Even if it should become necessary to recognise the family relationships of the increasing number of couples who raise children outside marriage, such a development would be based in most cases on the natural blood bond. It would in no way undermine, but would tend to emphasise the centrality of the mutual rights and obligations of the natural parents and their children…One does not have to seek far to find that courts widely separated in time and place have accepted the need to recognise and give weight to what has been variously characterised as the blood, or natural or biological link between parent and child.”
The same approach is adopted, in that case, by judges Hardiman and Geoghegan. Hardiman J. states at para. 97:
        “But it is most interesting to see that, in a jurisdiction lacking the specific social and cultural context which has led Ireland to protect the rights of the family by express constitutional provision, the interest of a child in being reared in his or her biological family is nonetheless fully acknowledged.”
While Geoghegan J. says at paras. 209 and 210:
        “…it is important to emphasise that the constitutional presumption that the welfare of the child is best served by being with his married parents is not some kind of artificial presumption. It is clearly based on the perceived wisdom at the time that the Constitution was enacted and, I have no particular reason to believe that it is not still the perceived wisdom even if not wholly approved of in some quarters. The importance of family and marriage and quite frankly also the biological link should not be minimised…In case it should be thought in some circles that the attachment of importance to the biological link is an outdated concept and is rooted merely in some conservative Irish view of the family, it is of considerable interest that this same concept has been reiterated by the House of Lords in the recent case of In re G. (children) [2006] UKHL 43, [2006] 1 WLR 2305. There is, of course, no presumption in favour of the child being with the natural parents under English law ever since a statute of 1925. What the House of Lords has held however is that the biological link is an important factor to be considered in assessing the child’s best interests.”
37. From the approach taken by the Supreme Court in the Baby Ann case the importance of the biological link is clear and the natural family is recognised by three of the Judges in the Court. Fennelly J. concludes at para. 336 that “[i]n this case, there is a primordial constitutional principle that a child’s welfare is best served in the heart of its natural family.” The natural bond is a “primordial constitutional principle” which reflects a fundamental, primordial law of nature that a child's welfare is best served in the heart of its natural family. That case is acceptance of the importance of the blood link or natural relationship which exists between a child and its and its parents.

38. G v. An Bord Uchtála [1980] IR 32 is an important judgment in regard to the position of children and mothers under Irish law. O’Higgins C.J. accepted that a mother had a personal right under Article 40.3.1 of the Constitution to protect, care for and have the custody of her infant child. At p. 55 he states that “the Plaintiff is a mother and, as such, she has rights which derive from the fact of motherhood and from nature itself.” Having set out the right to protect, care for and have the custody of her child he went on to say that “[t]his right is clearly based on the natural relationship which exists between a mother and child.”

39. The applicants submit that it is obviously the case that a gestational mother would, to some degree, protect a child but the natural relationship which exists between a mother and a child is the territory of blood link. This blood link comes from what is described as pure genetics and there cannot be a gestational element in that. Irish case law is replete with references to the blood link between not just mothers but fathers and their children. When we are talking about blood links, we are talking about genetic links. Irish case law as a proposition accepts the principle that there is a natural blood bond or blood link between parents and children. Furthermore, genetic links give rise to instinctive understandings between the genetic parents and their children. As Kenny J states in G v. An Bord Uchtála at p. 98:

        “The blood link between the plaintiff and her child means that there is an instinctive understanding will exist between them which will not be there if the child remains with the Notice Parties.”
40. In I.O’T v. B and Others [1998] 2 IR 321 the Supreme Court held that there was an unenumerated constitutional right to know the identity of one's mother which had to be balanced in the end against the privacy rights of the mother who had placed or had given the child to the adoption society. Hamilton C.J. stated at p. 348 that:
        “The right to know the identity of one's natural mother is a basic right flowing from the natural and special relationship which exists between a mother and her child, which relationship is clearly acknowledged from the passage quoted from the judgment of the State (Nicolaou) v. An Bord Uchtála and G v. An Bord Uchtála.”
Barron J. also mentions the importance of genetics at p.381 where he states:
        “The need to keep the door open is based upon genetics. Help from a member of the cognate family might be essential in certain diseases. In de facto adoption that is equally important.”
He specifically held that there should be a constitutional right for a child to know the identity of its mother and the need for the door to be kept open was genetics. He was willing to accept the importance of genetic factors as between parent and child.41. The Supreme Court also recognised the special relationship between a father and his child by reason of the blood link between them. In J.K v. V.W. and Others [1992] 2 IR 437 Finlay C.J. in the Supreme Court accepted at p. 447 that:
        “The blood link between the infant and the father and the possibility for the infant to have the benefit of the guardianship by and the society of its father is one of many factors which may be viewed by the court at relevant to its welfare.”
In his dissenting judgment McCarthy J. at p. 450 said that:
        “Where, however, the welfare of the child is adequately secured, as has found to be the case here, then, in my judgment, the fact that there may be added benefits as stated if the child remains in the custody of the prospective adopters, does not outweigh the combination of the rights of the father and the benefit to the child of maintaining the blood link or, more pertinently, the learned trial judge, who is the sole judge of the primary and secondary facts, is entitled so to hold.”
The applicants submit that since the father, JK, had never seen his child or had only seen him on one or two occasions. The only input on his part was the provision of genetic material. Nonetheless, the Supreme Court accepted the existence of the “blood link” and was satisfied that it was a fact to be taken into account in determining the child’s future. The genetic link is recognised as being a factor to be taken into account and an important factor to be taken into account in determining where the custody and where the welfare of a child is to be found. The Court in that case was recognising the importance of genetics in establishing a natural relationship between a parent and child. This “blood link” cannot have any gestational element and must arise solely by reason of them sharing common genetic material. In reality the expression blood link or blood bond must be taken as a reference in the case law to genetic factors. Blood itself does not make a link. Similarities in blood are due to genetic factors. The fact that we share common characteristics in our blood comes from the fact that our respective genes.

42. The parental relationship was also recognised in J.McD v. PL [2010] 2 IR 199 where Fennelly J. at para. 304 started:

        “The blood link, as a matter of almost university experience, exerts a powerful influence on people…Scientific advances have made us aware that our unique genetic make-up derives from two independent but equally unique sources of genetic material. That is the aspect of the welfare of the child that arises.”
It is a specific articulation by a Supreme Court judge of linking the concept of blood bond to genetic make-up and the importance of that in the context of relationships with children. The male input into the make-up of the child makes him a parent just because he gave the genetic material. There can be no doubt that the presence of a blood link is an important factor and it becomes a particularly more important factor if it is linked with an emotional contact and an actual contact with the child. At para. 302 Fennelly J. says:
        “The principle is that he has the legal right to apply and to have his application considered. To the extent that Finlay C.J. and Denham J. postulated a scale for assessment of “rights of interest or concern”, it seems likely that the sperm donor would be placed quite low, certainly by comparison with the natural father in a long-term relationship approximate to a family.”
The point here is that it places the genetic father on the scale and it is just the blood link that places him there. Even in circumstances where the man was merely a sperm donor, nonetheless the Court had no difficulty in accepting the concept of blood link as being a consideration that had to be taken into account.

43. The applicants accept that there is an extra factor in regard to motherhood, in that somebody carries the child. But it does not take away from the fact that in regard to both mothers and fathers, the Supreme Court has accepted, on numerous occasions, the existence of a blood link or blood bond. Logically, the blood link or blood bond in regard to fathers can only have genetic origins because in some of the cases the fathers had no contact with their children at all. There is an absolute wealth of authority that recognises the blood link as between both parents and children, whether they be the father or the mother.

44. The courts have extended extensive protection to the blood bond. In the case of a child of unmarried parents such protection is afforded pursuant to Article 40.3 and is achieved by the recognition of unenumerated rights in the mother to protect, care for and have custody of her child. As per O’Higgins C.J. in G v. An Bord Uchtála at p. 55 these rights of the mother “derive from the fact of motherhood and from nature itself”. The Supreme Court in I.O’T v. B stated at p. 348 that they flow “from the natural and special relationship which exists between a mother and her child.”

45. In the context of married parents of course the protection of the blood bond or the blood link is represented by Articles 41 and 42 of the Constitution. In the case of married parents, under Articles 41 and 42, there is a presumption that children are to be brought up by their parents and can only be taken away or not brought up by their parents in circumstances where there has been a breach of duty under Article 42.5 or where there are compelling reasons. In N v. Health Service Executive Fennelly J. examined the origins and purpose of these articles making it clear that they express and reflect a fundamental obligation to protect the natural bond which exists between child and parent.

Constitutional Rights
46. The applicants submit that they are entitled, pursuant to Article 40.3 and Articles 41 and 42 of the Constitution, to the recognition and protection of the natural or blood link which exists between the parents and the twins. The Court must adopt a definition of motherhood which will ensure appropriate recognition and protection of the natural of blood link between CR and OR as genetic parents of the twins. To do otherwise would be to fail in the most fundamental manner to recognise the natural bond between the applicants and to protect the following constitutional rights:

        1. The applicants have the right to belong to a family and to constitute a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law. This arises as CR and OR having married produced genetic children forming a blood link which has been strengthened by the fact that those children have since been reared and cared for by CR and OR. They are in all respects providing what can be described as a family for the children, but they are not clothed with the constitutional situation. If CR is not recognized as the mother, then the children, while living with her and her husband and in every practical respect having the outward signs of a family, are deprived of the actual recognition and security that comes from the fact of being a legally recognised family. This engages their rights under Articles 41 and 42.

        2. The rights of CR and OR, under Articles 41 and 42 and Article 40.3 to educate, protect and care for the twins and the correlative rights of the twins to be so educated and cared for are also engaged. The Constitution does cloth parents with those powers and it does give the children protection by those powers and the duties in regard to the vicissitudes of life. The twins are entitled to the same protection as other children in that respect and the fact of the circumstances of their conception should not take that away from them. The applicants are entitled to the security to know where they stand legally and that they stand as a family legally, with all that follows from that.

        3. The rights of the twins, pursuant to Articles 41 and 42, to have their welfare protected. In FN & Anor v. CO & Anor [2004] IEHC 60 (unreported 23rd March, 2004) Finlay-Geoghegan J. held that a child has a personal right pursuant to Article 40.3 of the Constitution to have decisions in relation to guardianship, custody or upbringing taken in the interests of his or her welfare. The applicants submit that the Judge adopted the principle that legislation had to be interpreted in accordance with the Constitution which ties into the best interests of the child. In DG v. The Eastern Health Board [1997] 3 IR 511 the Supreme Court, per Hamilton C.J. said that a child pursuant to Article 40.3 has a right to have his or her welfare protected. It would not be in the best interests of the twins that, as a matter of law, they have no legal connection or rights in relation to CR and OR.

        4. There is an obligation on the State under Article 40.3 to protect and vindicate the property rights of the parties. The failure to recognise CR as the mother in this case would have significant implications for the property rights of her, the twins and indeed her sister. If in law the twins are the surrogate mother's children, on intestacy the estate would split between her children and the twins - four ways as opposed to two. Conversely, the twins would not be entitled to an automatic share in the estate of their genetic mother on an intestacy.

        5. Not recognising CR as the mother has an implication for the right to marry. If in law the twins are the children of the genetic mother they would be first cousins of the children of the sister. Under Irish law one is entitled to marry one's first cousin. If they're treated in law as the children of the sister, they could not marry their siblings.

        6. Under Article 40.1 of the Constitution the right to equality of treatment is infringed in a number of respects. Not to recognize CR as the mother is to discriminate against her because of her inability to conceive and to give birth in the normal way, which, would be viewed in law as a disability. It would also be an unlawful discrimination contrary to Article 40.1 in the sense that it would mean that in Irish law, for males, parentage would turn solely on genetic factors, whereas for females, it would not and that would be, in effect, a sex discrimination as between the treatment CR as a woman and the treatment of other people, or males, who have the benefit of their parentage solely being determined by genetics.


A Rebuttable Presumption










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