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Decision in surrogacy case may ‘send ripples’ in system


Lawyers for the State have told the High Court that any decision concerning the rights of a genetic mother and a child born through international surrogacy would have significant and possibly unintended consequences for all areas of assisted human reproduction.

The court was told its decision could send “ripples” and “reverberations” through the system and affect legislation in many areas.

Senior Counsel Mary O’Toole was making submissions on behalf of the State in the case of a genetic mother of a boy born through international surrogacy who cannot be recorded as his legal mother.

The parents of the boy say there is an urgent need for his genetic mother to be legally recognised because his father is battling a life-threatening illness.

Kathy and Brian Egan from Kilkenny say the State’s failure to allow for the legal recognition of the boy’s genetic mother amounts to discrimination and a breach of his rights under the Constitution and the European Convention on Human Rights and have sought declarations from the High Court to that effect.

On the third day of the hearing, Senior Counsel Mary O’Toole said from the State’s point of view there was “nothing but respect for this family”. However, while it may seem the court was being asked a simple question in the case before it, the issues at hand were far more complicated.

Ms O’Toole said the court was being presented with “a deceptively simple situation and to make what seems like a deceptively simple answer to what is an enormously complex situation.”

She said the plaintiffs were in effect asserting a substantive right to have the genetic mother recognised as the legal mother.

While the attraction of that argument particularly in the present case was understandable, and one could not help but have great respect for the Egan family and great sympathy for them, what was at issue here was a deeply complex matter which engages the rights of a range of other people and can give rise to extraordinarily complicated situations that perhaps at first glance would not be appreciated, she said.

Ms O’Toole said: “While it is a simple matter to simply assert that the child at the centre of the case is entitled to the recognition (of his genetic mother) as a matter of constitutional right, that leaves aside a whole range of other issues which are not part of the case before the court.”

She added: “What the court is seeing is corner of a problem, a particularly pleasant corner and is not seeing the global situation because you are looking at it from the perspective of the particular set of circumstances and facts.”

She said it was for that reason that the majority of the Supreme Court had previously expressed the view that the type of complexity in surrogacy cases meant it was a matter that should be determined by the legislature and not the courts.

She said the Supreme Court took the view that the issues engaged involved deep questions of policy and the court had no function in the area.

In the case currently before the court, there are no complicating factors, but any decision the court makes will have consequences for every single other situation in circumstances where those situations are very diverse, she said.

Ms O’Toole said if there was a finding of a right to recognition of genetic motherhood, then every piece of legislation would now have to be interpreted in the light of that finding and may be undermined by it.

Rather than seeking a pathway to recognition, the plaintiffs were asserting a right to recognition and had already designated the pathway by genetic connection and not gestation. This, she said, would have “ripples” through the system and would have unintended consequences.

While the plaintiffs asserted they were only looking for recognition of the genetic mother as the legal mother if she was the care giver and the de facto mother, this could have consequences for genetic donors of material for the production of embryos, who could find themselves to be parents whether they wanted to or not.

“There are so many things that can happen, it makes it very unsafe to be providing for one facet of motherhood to be regarded as the legal motherhood because it raises questions about what the other facet of motherhood could be,” she said.

She said pending legislation would confer legal motherhood on the surrogate mother regardless of genetic connection, and it was envisaged that the surrogate mother’s consent to a declaration of parentage in favour of the intended mother would be required.

The simple declaration of a constitutional right would create a fixed point, and everyone would have to go around that fixed point, she said, adding that any decision would have reverberations not just in surrogacy but in all forms of assisted human reproduction.

The pending legislation was “extremely complex and technical” and gives an idea of the various things involved in just thinking about whether or not a genetic mother should be the legal mother.

Read More: Decision in surrogacy case may ‘send ripples’ in system

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