M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chlazraitheoir & ors [2014] IESC 60 (07 November 2014)

M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chlazraitheoir & ors [2014] IESC 60 (07 November 2014)

The Supreme Court held that, in the absence of specific legislation addressing surrogacy, the maxim 'mater semper certa est' does not operate as an irrebuttable presumption in Irish law. The Constitution does not define 'mother' for all purposes, and the Status of Children Act, 1987, provides a statutory mechanism for determining parentage, including maternity, by reference to genetic evidence. Therefore, the legal mother for the purposes of registration under the Civil Registration Act, 2004, is the woman who gives birth (the gestational mother), not the genetic mother, unless and until the Oireachtas legislates otherwise. The High Court's order to register the genetic mother as mother...

Citation
[2014] IESC 60
Parties
Applicants/respondents: M. R. and D. R. (suing by their father and next friend O. R.), O. R. and C. R.; Respondents/appellants: An t-Ard-Chláraitheoir, Ireland and the Attorney General; Notice Party: L. L. (nee M.)
Jurisdiction
Ireland
Judgment Date
07 November 2014
Procedural Posture
Appeal / Supreme Court Judgment on Appeal From High Court
Outcome
Appeal allowed; High Court order set aside
Legal Topics
Surrogacy, Parentage, Birth Registration, Declarations of Parentage, Interpretation of 'mother' in Law, Status of Children, Assisted Human Reproduction
Family Law Constitutional Law Civil Registration Surrogacy Parentage Birth Registration Declarations of Parentage Interpretation of 'mother' in Law +2 more

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Parties

M. R. and D. R. (suing by their father and next friend O. R.), O. R. and C. R.

Applicants/respondents

An t-Ard-Chláraitheoir, Ireland and the Attorney General

Respondents/appellants

L. L. (nee M.)

Notice Party

Procedural Posture

Appeal / Supreme Court Judgment on Appeal From High Court

Legal Issues

  1. 1 Who is to be recognised as the legal mother of children born via surrogacy: the genetic mother or the gestational (birth) mother?
  2. 2 Does the maxim 'mater semper certa est' (the mother is always certain) operate as an irrebuttable presumption in Irish law?
  3. 3 Does the Constitution or the Status of Children Act, 1987, require that only the birth mother be registered as mother?

Ratio Decidendi

The Supreme Court held that, in the absence of specific legislation addressing surrogacy, the maxim 'mater semper certa est' does not operate as an irrebuttable presumption in Irish law. The Constitution does not define 'mother' for all purposes, and the Status of Children Act, 1987, provides a statutory mechanism for determining parentage, including maternity, by reference to genetic evidence. Therefore, the legal mother for the purposes of registration under the Civil Registration Act, 2004, is the woman who gives birth (the gestational mother), not the genetic mother, unless and until the Oireachtas legislates otherwise. The High Court's order to register the genetic mother as mother...

Court Disposition

Appeal allowed; High Court order set aside

Orders

  • The High Court declarations that the genetic mother is the legal mother and entitled to be registered as such are set aside.
  • The registration of the birth mother as mother stands unless and until changed by legislation.