THE SUPREME COURT  IESC 60
Appeal No. 263/2013
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 60(8) OF THE CIVIL REGISTRATION ACT, 2004
IN THE MATTER OF THE CONSTITUTION OF IRELAND
IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964
IN THE MATTER OF THE STATUS OF CHILDREN ACT, 1987
IN THE MATTER OF M.R. AND D.R. (CHILDREN)
M.R. AND D.R.(SUING BY THEIR FATHER AND NEXT FRIEND O.R.), O.R. AND C.R.
AN tARD CHLÁRIATHEOIR, IRELAND AND THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice Hardiman delivered the 7th day of November, 2014.
1. I would allow the appeal and set aside the order of the High Court. I agree in general with the reasoning of O’Donnell J. I wish to make three additional points.
My first point relates to the urgent need for legislation in this area.
2. The dilemma in this case was precisely articulated some twenty-four years ago in an English case, Re W. (Minors) (Surrogacy)  1 F.L.R. 385. In that case, Scott-Baker L.J. said:
3. In that case, the issue was resolved by reference to the (U.K.) Human Fertilisation and Embryology Act, 1990.
“Until recently, when the advance of medical science created the possibility of in vitro fertilisation, it was not envisaged that the genetic mother and the carrying mother could be other than the same person. The advent of IVF presented the law with the dilemma: whom should the law regard as the mother?”
4. No parallel resolution is possible in this jurisdiction because, almost a quarter century after the English Act, the legislature has yet to address the matter. It intends to do so as a matter of urgency; there has been a Report which clarifies many issues; there has been a Bill the relevant sections of which have not, however, been proceeded with. I wish to join with my colleagues in pointing out the urgency of the need for legislation on this topic. There is, at present, a serious disconnect between what developments in science and medicine have rendered possible on the one hand, and the state of the law on the other. It is as if Road Traffic Law had failed to reflect the advent of the motor car. The failure to adapt the law in relation to developments in Embryology of course, affects far fewer people, but it affects them in a peculiar and intimate fashion which makes statutory law reform in this area more than urgent.
5. Secondly, I am firmly of the view that law reform in this area, is primarily, perhaps entirely, a matter for the Oireachtas. I am sorry to differ in this regard from Mr. Justice Clarke in his judgment in the present case. The extent of this difference should not be overstated. Like him, I acknowledge that the “sole and exclusive” power to make laws under the Constitution is conferred on the Oireachtas by Article 15.2.1. I certainly agree with Mr. Justice Clarke’s comment on this:
6. Outside the context of the Superior Courts’ constitutionally mandated role as interpreters of the Constitution, I agree with Mr. Justice Clarke that:
“In that context, there are limits to the extent to which it is constitutionally appropriate for the Courts to engage in a reinterpretation of the Common Law where such interpretation might cross the line into legislation and, thus, infringe the constitutionally protected role of the Oireachtas”.
7. There have been endless judicial and academic attempts to define the proper role of the Courts, as against that of the legislature, in the process of law reform. I will refer to one or two of these below. But for the purposes of the present case, it is unnecessary to go beyond the last quoted phrase from the judgment of Clarke J., to support the proposition that the present case is, emphatically, not one for judicial law reform precisely because it “requires significant policy choices and detailed provisions beyond the scope of the legitimate role of the Courts”.
“it is clear that the role of the Courts… while important, is limited. Short of the existing law being found to be in breach of the Constitution, the only proper role of the Courts is to play their part in the evolution of the Common Law in its application to new conditions and circumstances or to interpret legislation. Even where it is clear that the existing law is no longer fit for purpose it may well be that the only solution lies in legislation. This will particularly be so where any solution to identified problems requires significant policy choices and detailed provisions beyond the scope of the legitimate role of the Courts”.
A policy choice.
8. There is no doubt in my mind but that the dilemma, perfectly described by Lord Justice Scot Baker, quoted above, is one which requires for its solution an important policy decision. The question as to whom the Court should regard as the mother of a particular child, born as a result of assisted reproduction, raises fundamental issues the most basic of which is, “what is motherhood?”.
9. It is to my mind self evident that the questions as basic as the one just posed cannot be answered by any technical legal exegesis or even by any purely logical process. This is because, at bottom, the question raised is not a legal question or a purely logical question. It is a question of values and attitudes so deep that it is an understatement to call it a matter of policy. In my judgments in Sinnott and T.D (  2 I.R. 545 and  4 I.R. 259, respectively) I give several reasons for the conclusion that the Courts should not impose their own opinions on questions which are not, fundamentally, of a legal nature at all.
10. I do not intend to repeat that discussion here, merely to mention it, lest failure to note my reservations regarding the expansive attitude to the Courts power expounded by Mr. Justice Clarke might suggest acceptance of it. The point will inevitably arise in other cases, sooner rather than later.
11. It is plainly necessary for any Common Law judge confronted with the (often very seductive) temptation to change the law in the interests of what he or she perceives to be justice, to be very clear as to the legitimate scope of a judge’s ability to do so.
Justice Oliver Wendell Holmes was Chief Justice of the General Court of Massachusetts and subsequently for twenty-five years a Justice of the United States Supreme Court. He was the author of a well-known treatise on “The Common Law”. He was a scholar, par excellence, of the role of the Common Law judge and in particular of the scope for such a judge to develop or evolve that body of law. In Southern Pacific Company v. Jensen 244 US 205, he said in an influential passage at p.244 of the Report:
Justice Holmes language is in part somewhat unusual. But “molar” means of or relating to a very large body or mass; molecular, on the other hand, connotes an extremely small entity.
“I recognise without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from Molar to Molecular motions. A Common Law judge could not say I think the doctrine of consideration a bit of historical nonsense and I shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say I think well of the Common Law Rules of Master and Servant and propose to introduce them here en bloc.”
This passage was adopted in Kleinwort Benson v. Lincoln City Council  2AC 349 at 377, by the distinguished English jurist Lord Goff:
12. It must be very clear that what is proposed in the present case could not possibly be described as an “interstitial” development. This word means pertaining to, forming or occupying interstices, according to the Oxford English dictionary. An interstice is “an intervening, usually empty, space, especially a relatively small or narrow space, a chink, a crevice”. The modest scope of the power described by this adjective is sufficiently suggested by that definition. What is proposed here is emphatically not something that can be done “within the confines of the doctrine of precedent”. It is in no sense a development of a “seamless web”; it is a proposal to extract a significant part from that web and replace it with something quite different.
“When a judge decides a case which comes before him, he does so on the basis of what he understands the law to be. This he discovers from the applicable statutes, if any, and from precedents drawn from reports of previous judicial decisions. In the course of deciding the case before him he may, on occasion, develop the Common Law in the perceived interests of justice, though as a general rule he does this ‘only interstitially…’ This means not only that he must act within the confines of the doctrine of precedent, but that the change so made must be seen as a development, usually a very modest development, of existing principle and so can take place as a congruent part of the Common Law as a whole. In this process, what Maitland has called ‘the seamless web’ and I myself have called the ‘mosaic’ of the Common Law is kept in a constant state of adaptation and repair, the doctrine of precedent, the ‘cement of legal principle’ providing the necessary stability”.
This is an invitation to overrule the established understanding of “mother” and then to legislate in the area left vacant, and to do so without any evidence-based assessment of the merits of the new dispensation. If the Court were to accede to the Respondents’ invitation, it would dangerously approach illegitimacy.
13. Mr. Justice Clarke will refer to the need to develop the law of contract, which took its rise in its modern form “in the era of the mounted courier and the telegraph”, in light of the developments of the electronic era. I doubt if the mounted courier and the telegraph co-existed for very long but the mention of the first of these things indicates the great period of time over which this development has taken place. Further, the developments in question were not developments of principle, but developments intended to take account of the fact that communication at a distance, once confined to the speed of a rider on horseback, is now virtually instantaneous. But the principles remain the same. Here, the substitution of a new principle is in question, on a topic as fundamental as motherhood.
14. It seems to me that the principles I have outlined above are enshrined in Irish law as well. In Hynes-O’Sullivan v. O’Driscoll  IR 436, this Court was invited to amend the long standing Common Law defence to a defamation action, that of Qualified Privilege. The Court refused to do this, for a number of reasons which are set out by Henchy J. at pages 449-450 of the Report. On the latter page he said:
15. I consider that this approach applies all the more obviously where we are concerned, effectively, with the question of the nature of motherhood.
“I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case. That is particular so in a case like this where the law as to Qualified Privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature”.
16. The third point which I wish to make relates to the learned trial judge’s finding that “examination of the genetic material is the sole and determinative” evidence of parenthood.
17. I do not consider that the Court should address this question at all, for the reasons given in an earlier Section of this judgment. But I would specifically depart from this finding of the learned trial judge because I fear that for the Courts to express a specific view on this subject in advance of legislation might tie the hands of the legislature.
18. In particular I am afraid that the view which the learned trial judge expressed, if it stood, would permanently exclude from the status of “mother” a woman who has given birth, having become pregnant with “donor” genetic material. In the English legislation on this topic it is provided that a woman who has given birth by reason of the implantation in her of donor materials, “and no other woman” shall be treated as the mother of the child born as a result.
19. I am apprehensive that to uphold the learned trial judge findings in this regard might preclude the Oireachtas, assuming it to be so minded, from legislating along the same lines. I am far from suggesting that the Oireachtas should (or should not) follow the English precedent, but I do not think that any judgment of the Court should preclude them in advance from doing so if they thought fit.
20. It must be borne in mind, in this context, that the facts of the present case are most unusual. As I understand it, in the large majority of assisted reproduction cases, the woman seeking the assistance is entirely capable of bearing the child but requires the implantation of donor material within her to commence the gestation. In the present case, by contrast, Mrs. R. is quite capable of producing the genetic material but, for anatomical reasons, is unable to bear the child. Apart from any other consideration, I do not think this unusual case is an appropriate one in which to lay down rules of general application. I am very conscious of Mr. Justice Henchy’s cautionary reference to “the tunnel vision imposed by the facts of a single case”.
21. I would allow the appeal and set aside the order of the High Court.