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  • it would be futile to attempt to define precisely However in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings What the plaintiff has to show and I think the onus under O 84 r 21 is on the plaintiff is that there are reasons which both explain the delay and afford a justifiable excuse for the delay There may be cases for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights The State Cussen v Brennan 1981 I R 181 Or again the delay may unfairly prejudice the rights and interests of the public authority which had made the ultra vires decision in which event there would not be a good reason for extending the time or a plaintiff may acquiesce in the situation arising from the ultra vires decision he later challenges or the delay may have amounted to a waiver of his right to challenge it and so the court could not conclude that there were good reasons for excusing the delay in initiating the proceedings I am satisfied that this analysis is applicable to the term good reason in O 84A r 4 I apply the test to this case Thus the applicant had to show that there were reasons which both explained the delay and offered a justifiable excuse The public contract in issue involved significant liabilities obligations and expenditure which may raise important factors for a court The justice of the situation may raise issues such as prejudice to the notice party arising from the expenditure and other undertakings in the contract Also I am satisfied concepts of the public good may be relevant as being prejudiced by protracted and delayed judicial review The common good could have a heavy weighting in reviews of this type reflecting the requirement on any applicant to move rapidly However in this case the decision necessary relates only to the reason and explanation for the delay The discretion in relation to such an application must be exercised in accordance with law Whilst O 84A r 4 is relatively new it is clear and unambiguous The concept that the application be made at the earliest opportunity is not dissimilar to the term promptly The words are informed by the requirement under European law that the application be made rapidly 12 These remarks are directly relevant to this appeal High Court Decision 13 The decision in Dekra was interpreted by Ó Néill J in the High Court in a restrictive manner It limits the relief which can be given where a discretion is given to add a ground or to commence proceedings outside the time limits in a way that is not reflected in the broad discretion conferred on the High Court under the legislation Ó Néill J stated his view at the end of his judgement 23 The problem here is that these judicial review proceedings relate to public procurement matters and it is well settled since the judgements of the Supreme Court in the Dekra case that in this specialised area of judicial review a strict or stringent approach must be adapted to applications for relief outside of the prescribed time limits Whilst there is undoubtedly a jurisdiction to extend the time limit in question this can only be done if it is demonstrated that there is good and sufficient reason for so doing In other areas of judicial review mere oversight or error on the part of legal representatives could as mentioned in the judgement of Finlay Geoghegan J in the Muresan case be a ground for extending time in an appropriate case In my opinion in a procurement case the stricter approach to compliance with the prescribed time limits required would exclude mere oversight as a good and sufficient reason for permitting an extension of the time limit It would seem to me that in order to reach the necessarily high threshold which good and sufficient reason requires in these cases it must be shown that the factor which brings about the application to extend time or to seek relief outside the time limit was either not in existence within the time limit or was unknown to the applicant within that time limit In effect an applicant must be able to demonstrate that insofar as the ground sought to be added to the proceedings is concerned he was effectively inhibited or prevented from raising that ground within the prescribed time limit 24 In this case all the information necessary to plead the capacity ground was amply available to the applicants within the time limit That being so I feel bound to follow the reasoning of the Supreme Court in the Dekra case and applying the strict approach described in the judgements in that case inevitably results in a conclusion that the applicants have not demonstrated a good and sufficient reason for extending the time limit prescribed so as to permit the amendment sought 14 This view is over strict It is not necessary to demonstrate a factor unknown to an applicant or one which was not in existence for time to be extended Instead a late application or a late amendment to include a new ground not previously pleaded requires good reason That must take into account the factors listed by the learned trial judge but these are not the only factors One of the most important factors is the public interest and another is the conduct of the parties As to the first there is a clear public interest in the disposal of controversies involving multiple suppliers of goods to the State within a prompt time frame There is also however an interest in ensuring that such points as can be argued and which are applicable to other similar situations are considered and ruled on by the High Court As to the conduct of the parties there has already been a contest in the first set of proceedings on the issue of capacity That point has already been argued in those separate proceedings and an amendment to include it will not come as a surprise to the respondents Furthermore by that argument in the first set of proceedings it was made clear to the respondents that the applicants appellants regarded capacity as point of real substance whether they were right or wrong That point was notified to the respondents in the initial letter in the instant judicial review application A mere oversight led it to be dropped but that was in the context of what this Court has been told is a cross appeal or notice to vary judgment in the other case which seeks to reargue the capacity point before the Supreme Court Thus no matter how the question is looked at it is a point notified at the earliest opportunity which is essential to the disposal of the controversy between the parties and which is not raised unfairly which otherwise it might be were the respondents to be notified of the point after the time limit had elapsed Adding the point to these proceedings will assist in the final disposal and it will not cause any delay and it has not caused any prejudice 15 In contrast the applicants appellants seek also to claim damages on the basis that they have been wrongly shut out of profits from the contracts under the multi supplier framework agreement for the purchase of monochrome and colour printers and other multifunction devices This is effectively a new point It was not part of the first set of proceedings It was not notified to the respondents in an initial letter It does not in any way arise naturally or by implication out of the existing pleadings No reason has been advanced as to why this point was not included in the statement to ground the application for judicial review as opposed to the originating notice of motion as initially drafted The award of damages is not essential to the disposal of the aspect of the case which would be in the public interest The capacity of bodies such as the respondents to set up tender procedures and to limit the range of suppliers is in contrast a matter that ought to be decided so as to ensure that the law is clarified Result 16 In the result the amendment in respect of capacity will be allowed An amended statement of grounds should be furnished today incorporating the alteration That ground will be taken to be denied if no amended notice of opposition is filed The respondents have liberty to file such a notice and if it is required an affidavit within four days of this judgment The application to add a claim for damages is refused The trial should not be delayed An Chúirt Uachtarach The Supreme Court Record number 2013 211JR Appeal number 314 2014 Murray J Laffoy J Charleton J Between Copymoore Limited Cork Office Machines and Supplies Limited Cusken Limited EMS Copier Services Limited Eurotech Office Equipment Limited Inest Limited Mormac Limited MBE Mallow Limited O Rourke Office Supplies Limited Sharptext Cork Limited and TOS Ireland Limited Applicants Appellants and Commissioners of Public Works of Ireland Respondent Judgment of Mr Justice Charleton delivered on the 7th day of November 2014 1 This is an appeal from the judgment and order of Ó Néill J refusing a motion to extend grounds in a judicial review application in a public procurement challenge 2014 IEHC 234 Unreported Ó Néill J High Court 9th May 2014 At issue in this appeal is whether the applicants appellants should be permitted to add two new grounds to their pleading one relating to capacity and the other to damages The failure to plead the capacity ground arose through a simple error made by the lawyers in drafting the notice of application That ground was however clearly notified to the respondent in the initial letter of 15th March 2013 prior to the commencement of proceedings The damages claim was not mentioned there nor in statement to ground the application for judicial review but did appear in the originating notice of motion Since at issue is the validity of a decision to limit the available range of suppliers in public procurement for State bodies any amendment to proceedings must take into account the public interest in the swift disposal of this kind of litigation and will only allow exceptions to the strict time limits involved where good reasons are advanced 2 These proceedings commenced by originating notice of motion on 19th March 2013 One issue which arises in the proceedings before the High Court is whether that motion commencing the proceedings was issued in time which is the first plea in the notice of opposition No comment will be made on this Since that is a decision that needs to be resolved by the High Court this decision is solely concerned with an amendment application and assumes without deciding that the proceedings started in time Commencing the proceedings had the effect of freezing a decision by the respondents to limit public procurement to a number of providers in a multi supplier framework agreement for the purchase of monochrome and colour printers and other multifunction devices The trial date for the substantive review in the High Court is set for 10th December 2014 Pending the resolution of the proceedings these devices are being purchased by the respondents on behalf of a multitude of State agencies without implementing the limiting measures as to suppliers with which the applicants appellants take issue The resolution of the proceedings will depend on whether a breach has occurred of the European Communities Award of Public Authorities Contracts Regulations 2006 S I No 329 of 2006 known as the Public Procurement Regulations in respect of which applications must be made swiftly under the European Communities Public Authorities Contracts Review Procedures Regulations 2010 S I No 130 of 2010 known as the Remedies Regulations Order 84A of the Rules of Superior Courts reflect the time limits in the originating legislation Under the Remedies Regulations at Regulation 7 2 an application to suspend the process of awarding contracts must be made within 30 calendar days This runs from when the applicant was notified of the decision or knew or ought to have known of the infringement alleged in the application Regulation 10 2 of the Remedies Regulations enables rules of court to extend the statutory time period for the commencement of such an application This requires good reason to do so Order 84A rule 8 on amending a statement of application whether by specifying different or additional grounds is silent on the standard to be met before such an amendment will be permitted There is no doubt however that for an amendment to be permitted good reason is also required In Keegan v GSOC 2012 2 IR 570 at issue before the Supreme Court was an amendment under Order 84 Having reviewed the various authorities on leave to amend judicial review proceedings Fennelly J stated that a fair balance needed to be struck between the certainty and security of administrative decisions and the rights of those affected to contest them Of necessity various strict time limits are set by the Rules of the Superior Courts or by legislation for challenging such decisions As Fennelly J points out at paragraph 32 however such limits are mitigated by the power of the courts to permit an application outside the permitted time provided the court is persuaded that there is good reason for the delay and that no other party is adversely or unfairly prejudiced Where an amendment is sought as Fennelly J points out at paragraph 35 there is no reason to impose a more exacting standard than would be the case for a late application On the other hand it is difficult to see why an applicant for an amendment of grounds should have to satisfy a more exacting standard in explaining delay than is imposed on an ordinary late application He may say that the additional ground is based on material of which he was unaware when he was making his original application On occasion the respondent reveals a new ground of argument in its answer to the application as appears to have occurred in McCormack and Dooner The applicant may offer a different explanation There is no reason in logic to impose on an applicant a criterion of newly discovered fact to justify an an application to amend when an application for an extension of time is not subject to any equivalent condition This is not to say that the applicant s knowledge of the facts is irrelevant In some cases as in McCormack discovery of new facts may be an explanation for the omission to include a ground In other cases the applicant may have been aware at all relevant times of the facts relevant to the new ground and this will weigh in the balance against him without being necessarily conclusive 3 An amendment should not be permitted however without an explanation that is sufficient to tilt the balance of rights in litigation in favour of considering the proposed new ground for seeking judicial review or for opposing it Fennelly J sets out useful principles at paragraph 35 as follows None of this is to take away from the fact that an application for an amendment of his grounds for judicial review must explain his failure to include the proposed new ground in his original application The cases show that the courts are reluctant to admit new grounds which amount to advancing an entirely new cause of action as in Ní Eilí v Environmental Protection Agency or a challenge to a different decision as in Muresan The nature of the decision under attack may also be relevant If it is one which benefits the public at large or a large section of the public a challenge may have corresponding disadvantages for a large number of people This may explain why special and stricter statutory rules have been introduced in cases of public procurement planning and development and asylum and immigration The courts will have regard to the public policy considerations which have prompted the adoption of such rules 4 On the other hand as Fennelly J states at paragraph 37 an amendment may be more favourably considered where it does not involve a significant enlargement of the applicant s case That is because the decision in issue is already under question Where a pure question of law is sought to be added to proceedings an additional ground may not make any significant difference whereas on the other hand a different view might be taken where a new ground is factual and likely to give rise to further exchange of affidavits relating to the facts 5 These are the second set of proceedings that arise out of a decision of this kind The first were entitled Copymoore Limited and Others v Commissioners of Public Works in Ireland and the resulting judgment is under appeal to this Court see 2013 IEHC 230 Unreported High Court Hogan J 29th May 2013 In the instant proceedings the applicants appellants have submitted that the capacity ground which is sought to be added to the statement of grounds was also argued therein In the result however the case was decided in favour of the applicant under another ground The capacity ground was not ultimately determined by Hogan J in that

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  • matter was raised before this Court in the written submissions of Mr Ewing 12 It was submitted at Part L 1 of the appellant s notice of appeal that Social order is commonly indicated by residence and these proceedings rather than specifically allege that the appellant s occupation of the dwelling is inconsistent with requirements of true social order i e by way of claim that such alleged costs should be paid and are unlikely to be paid any other way generally allege such inconsistency i e by way of claim that the appellant is not the appropriate person to continue possession or continue to have rights in the dwelling as presently constituted and do so with evidently callous disregard for both the appellant s upgrade and renovation of the dwelling and the nature of his legal concerns as its custodian a disregard in fact for the appellant being its worthy custodian 13 Mr Ewing also submitted at Part L 2 of the notice of appeal that The relevant issue of the appropriateness of a landmark property such as the dwelling being occupied by a non native person with divided cultural sympathies is answered by way of reference to the respondent s unconscionable claim for possession or sale of the dwelling i e the claim of the local malcontent pertaining to such issue in this particular case for such callousness suggests that as far as such issue can be decided by these proceedings the respondent s claim is immoral and fails 14 In oral submissions Mr Ewing said that the learned trial judge had not taken into account the concept of true social order Mr Ewing said that it was the principle issue with deviation and concession and that his views were not taken into account He said that he was not in a dignified situation which implied that he was not dignified 15 As to this aspect of the appeal it was submitted that the issues before the learned High Court judge were set out in her report There have been five sets of proceedings including these proceedings in which matters relating to the dispute between Mr Kelly and Mr Ewing were addressed and decided 16 It being pointed out to counsel that Mr Ewing had raised the issue that the learned High Court judge should have taken into account true social order counsel replied that true social order relates to the dispute between Mr Ewing s father and Mr Kelly and between Mr Ewing and Mr Kelly 17 On being pressed by the Court that it was not so but that it was the impact the order of the High Court would have on his dignity and character counsel for Mr Kelly replied that the issue was the possession of the land 18 Counsel for Mr Kelly submitted that there was fairness in court proceedings especially for lay litigants but that the matter before the High Court was a well charging order and that it was dealt with in accordance with law 19 The issue of true social order as argued by Mr Ewing is not relevant to these court proceedings which must be and were carried out in accordance with the law The issues raised in the proceedings were identified by the High Court and were determined in accordance with law Consequently this aspect of Mr Ewing s appeal fails Deviation and Concession 20 In the High Court by an affidavit sworn on the 18th December 2006 by Mr Kelly on the basis of valuations identified in the affidavit Mr Kelly made a concession that he would accept part of the lands marked B on an attached map being 2 522 acres He deposed 4 I now submit to this Honorable Court the said valuation of Michael Regan Auctioneering Limited dated 18th December 2006 with the said amended map comprising an area of 2 522 acres or thereabouts statute measure 1 021 ha upon which together marked AK I have signed my name prior to the swearing hereof and wherein he has valued the said plot of ground at approximately 300 000 5 I estimate and am advised that a sum of approximately 133 200 would be required to discharge the taxed party and party costs awarded to me in the various Orders for costs referred to in these proceedings and that statutory interest thereon would be in the region of approximately 60 000 as of the date hereof giving a total of 193 200 I further estimate and am advised that the total due to me by the defendant on foot of costs and interest thereon by the 30th October 2007 would be 195 000 approximately and that the costs of these proceedings if awarded to me and the costs and expenses of selling the said plot of land comprising 2 522 acres would be likely to come to an additional sum of approximately 40 000 6 I ask this Honorable Court to grant the relief sought 21 On foot of that concession the High Court ordered IT IS ORDERED that in default of payment to Mr Kelly of the said sum together with interest in the said principal sums at the appropriate statutory rate until payment and the costs hereinafter awarded within three months from the date of service of this Order the lands outlined in red and marked B on the map exhibited at AK in the affidavit of Mr Kelly sworn on the 18th day of December 2006 and filed in court on the 20th day of December 2006 be sold at such time and place subject to such conditions of sale as shall be settled by the Court and the following Account and Inquiry are to be taken and made in the Examiners Office 22 Mr Ewing objected to the deviation and concession He returned to the issue of dignity to keep the land in one piece that the property not be undignified by slicing it in half Mr Ewing saw this deviation as an attack on his character He said that it was not a concession that the deviation was a partition of the property He said he could not go along with a concession that was not a concession Mr Ewing said that the learned trial judge should have realised that he would resist the deviation Mr Ewing argued that the learned High Court judge should not have divided the property During the hearing of this appeal Mr Ewing said that he objected to the deviation concession by the learned trial judge regarding the property He pointed out that he still lived in the dwelling Motion to enlarge time and motion to vary 23 On behalf of Mr Kelly a motion was brought dated the 6th May 2014 before the Court seeking to enlarge time for the service of a motion to vary the decision and order of the High Court the decision having been delivered on the 19th June 2007 and the order having been perfected on the 1st February 2008 24 A motion was also brought on behalf of Mr Kelly dated the 11th June 2014 seeking to admit further evidence 25 The background for both motions was that based on the affidavit of Mr Kelly sworn on the 18th December 2006 the total sums due and owing were then capable of being discharged by the sale of a reduced plot of land comprising 2 522 acres which excluded Abbeyville House This was based on a valuation certificate of Michael Regan This was the concession deviation upon which the High Court made its order However in the affidavit grounding the motion Kevin Rooney deposed that the order for sale of the High Court is no longer capable of realising the sums secured by way of judgment mortgage against Mr Ewing as the market value of the lands had declined and the sum secured by the judgment mortgage has increased because of the accrual of interest 26 In bringing these motions counsel for Mr Kelly referred to and relied upon MD v ND 2011 IESC 18 where the Court allowed new evidence as to the charging value of agricultural land However I would distinguish that case as it was a family law case by its very nature it was not a final order 27 It was a very different situation to the circumstances of this case In this case Mr Kelly made a concession and the High Court did what was asked by Mr Kelly Admirably Mr Kelly did not want Mr Ewing to lose his home 28 On this motion Mr Ewing did not propose to put in his valuation of the lands before the Court now 29 On the issue of the concession I would not go behind the judgment and order of the High Court 30 While all the lands are well charged I would not on this appeal re visit the issue of the concession made to and the order of the High Court 31 It is noteworthy that all the monies due except 500 arise from costs arising from decades of litigation which have been taxed Conclusion 32 In all the circumstances I would dismiss the appeal and the two motions and affirm the order and judgment of the High Court THE SUPREME COURT Appeal No 060 2008 Denham C J Murray J McKechnie J In the matter of Folio 1347 of the Register of Freeholders County Galway and In the matter of Judgment Mortgages registered thereon and In the matter of a Well Charging Application And In the matter of s 153 of The Chancery Ireland Act 1867 as preserved by s 1 of The Statute Law Revision No 2 Act 1893 and s 9 5 of The Succession Act 1965 Between Anthony Kelly Plaintiff Respondent And Robert Ewing sued in his personal capacity and sued in his capacity as personal representative of William Ewing Deceased Respondent Appellant Judgment of the Court delivered on the 7th day of November 2014 by Denham C J 1 This is an appeal by Robert Ewing against whom the proceedings were brought in his personal capacity and in his capacity as personal representative of William Ewing deceased the respondent appellant referred to as Mr Ewing from the order of the High Court Laffoy J made on the 19th June 2007 perfected on the 1st February 2008 and the report of the judgment by Laffoy J made on the 3rd March 2011 2 Anthony Kelly the plaintiff respondent is referred to as Mr Kelly 3 At the core of this appeal are five judgment mortgages in respect of which relief was sought arising from orders for costs and damages against Mr Ewing and or his father the late Mr William Ewing which in themselves arose from protracted proceedings between the parties relating to the sale and transfer of the disputed lands from the late Mr William Ewing to Mr Kelly in or around 1983 These particular proceedings arise from a special summons issued on the 15th May 2006 4 On the 19th June 2007 the High Court found sums due and owing to Mr Kelly by Mr Ewing being the sum of 133 834 16 together with interest at the appropriate statutory rate until payment from the 12th June 1996 the 22nd July 1997 the 31st October 2001 the 19th December 2000 and the 16th May 2000 respectively The High Court ordered IT IS ORDERED that in default of payment to Mr Kelly of the said sum together with interest on the said principal sums at the appropriate statutory rate until payment and the costs hereinafter awarded within 3 months from the date of service of this Order the lands outlined in Red and marked B on the map exhibited at AK in the Affidavit of Mr Kelly sworn on the 18th day of December 2006 and filed in Court on the 20th day of December 2006 be sold at such time and place subject to such conditions of sale as shall be settled by the Court and the following Account and Inquiry are to be taken and made in the Examiners Office 1 An account of all incumbrances subsequent as well as prior to and contemporaneous with Mr Kelly s demand 2 An Inquiry as to the respective priorities of all such demands as shall be proved And IT IS ORDERED Mr Kelly do have the costs of and incident to this application and Order and the proceedings hereunder when taxed and ascertained in equal priority with this demand 5 In a document dated the 3rd March 2011 Laffoy J gave a report on the judgment of the 19th June 2007 At p 7 of that report it is stated as follows The judgment and order of the High Court and the reasons for it Mr Kelly s application was determined on the basis of the affidavit evidence before the Court Mr Ewing s application for the matter to be heard on oral evidence was refused There was no conflict on so much of the affidavit evidence as was material to the reliefs sought by Mr Kelly on the application The order of the Court as perfected on 1st February 2008 properly reflects the judgment and order of the Court First the Court made the well charging order sought by Mr Kelly in that it declared that the principal monies and interest thereon secured by the judgment mortgages registered at entries 5 6 7 8 and 9 on Part 3 of Folio 1347 and the costs of the registration of the judgment mortgages and the costs awarded by the Court stand well charged on the interest of Mr Ewing personally or in his capacity as personal representative of William Ewing deceased on the Ewing interest plot being part of the lands registered on Folio 1347 Secondly the Court made a finding as to the amounts due for principal and interest on foot of the said judgment mortgages which corresponded to the sum specified for principal on the relevant entry on Part 3 of the Folio together with interest on each of the said sums at the Court rate in each case from the date of judgment I note however that in relation to the judgment mortgage at entry 6 the principal sum set out in the order the Euro equivalent of IR 19 375 42 differs from the figure set out at 2 b in the endorsement of claim on the special summons I assume that the explanation for the difference is that the monies secured by the order made by Kelly J on the appeal in the Circuit Court equity proceedings on 27th July 1997 included damages in the sum of IR 500 as well as costs Thirdly it was ordered that in the event of default of payment of the principal sums which aggregated 133 834 16 and the interest and costs declared well charged within three months from the date of service of the order the reduced plot to be sold through the Court The order for sale reflected the concession made on behalf of Mr Kelly in the affidavit of 18th December 2006 in limiting the sale to the reduced plot Fourthly it was ordered that the usual account and inquiry which is conducted in the Examiner s Office in a mortgage suit should be conducted that is to say an account as to encumbrances and an inquiry as to their respective priorities Finally an order for costs was made in favour of Mr Kelly One of the reliefs sought by Mr Kelly that is to say an order for possession of the Ewing interest plot was not granted because it was not appropriate to make an order for possession at that stage in a mortgage suit founded on a judgment mortgage As I understand it apart from the sum of IR 500 damages awarded on the High Court appeal in the Circuit Court equity proceedings to William Ewing all of the monies secured by the judgment mortgages represented costs and in all cases the costs had been taxed On the basis that all of the costs had been subject to taxation the Court rejected Mr Ewing s assertion that the monetary claims were inflated I believe that the note prepared by Mr Kevin Rooney of K J Rooney Co the solicitors for Mr Kelly which was lodged in the Supreme Court office on 5th March 2009 of the observations I made in giving judgment is accurate I gratefully adopt Mr Rooney s note In particular I emphasised that the terms of the order were to be the usual terms of a well charging order in a mortgage suit 6 Mr Ewing filed a notice of appeal dated the 28th February 2008 In that document Mr Ewing raised issues of harassment malicious intent attack on religion emotional abuse re occurrence of harassment unsafe evidence no evidence matters of general importance ghettoisation social order appropriate orders a human rights issue compensation and striking out Article 43 2 of the Constitution time limitation and costs degrading punishment Article 3 negation of dwelling Article 8 demeaning of opinion Articles 9 and 14 destruction of domestic environment Article 1 of Protocol 1 7 The Court received full written submissions from Mr Ewing which it has considered carefully 8 The Court also heard oral submissions from Mr Ewing In oral submissions Mr Ewing stressed three matters i The service of the special summons in these proceedings ii That there was no regard to true social order iii The concession in the High Court Service of Summons 9 The submissions in relation to the service of the summons were considered carefully Mr Ewing said that the summons had not been served on him However I am satisfied that this ground of appeal fails Mr Ewing entered an appearance took part in the High Court proceedings filed affidavits and addressed issues in the High Court There was no issue as

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  • 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 2001 2 I R 545 and 2001 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 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 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 This passage was adopted in Kleinwort Benson v Lincoln City Council 1999 2AC 349 at 377 by the distinguished English jurist Lord Goff 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 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 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 1988 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 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 15 I consider that this approach applies all the more obviously where we are concerned effectively with the question of the nature of motherhood 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 Conclusion 21 I would allow the appeal and set aside the order of the High Court THE SUPREME COURT 2014 IESC 60 Appeal No 263 2013 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 Applicant Respondents and AN tARD CHLÁRIATHEOIR IRELAND AND THE ATTORNEY GENERAL Respondents Appellants and L L née M Notice Party 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 1991 1 F L R 385 In that case Scott Baker L J said 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 3 In that case the issue was resolved by reference to the U K Human Fertilisation and Embryology Act 1990 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 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 6 Outside the context of the Superior Courts constitutionally mandated role as interpreters of the Constitution I agree with Mr Justice Clarke that 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 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 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 2001 2 I R 545 and 2001 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 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 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 This passage was adopted in Kleinwort Benson v Lincoln City Council 1999 2AC 349 at 377 by the distinguished English jurist Lord Goff 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

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  • relatively recently a woman by giving birth to a child irrefutably established the fact of mother For the vast majority of births this is still so However developments over the last decade in medical science which have resulted in the availability of new techniques to assist human reproduction have meant that the mere fact of birth for a small minority of women may not conclusively determine motherhood For example if a child born following the fertilisation of a donor egg with a husband s sperm using the technique known as in vitro fertilisation IVF or by way of gamete intra fallopian transfer GIFT is the mother of such child the woman who gives birth or the egg donor A similar question arises where a woman gives birth to a child following the use of either of the above techniques where she is acting as a surrogate for a couple whose eggs and sperm were used for the conception No statutory provisions have been enacted to date to answer these questions nor has any case raising such issue yet come before the Irish courts In the absence of legislation whether the courts would favour the birth mother or the genetic mother is a matter of conjecture It is also uncertain what relationship in law such child would be held to have to the birth mother s or genetic mother s relations None of these questions or difficulties arise in the context of a medically assisted conception where the birth mother s eggs are used in the conception of the child In such circumstances the birth mother and genetic mother are the same person and she is in law the mother of the child born to her even if she has agreed to act as a surrogate for her child s father and wife 82 In contrast to this jurisdiction the law in the United Kingdom on this topic has advanced in recent decades and thus the academic literature is a useful comparative reference In Law and Parenthood Barton Douglas Butterworths 1995 it is stated at p 54 that i t was never established in the common law whether the legal mother of the child was the genetic or gestational mother since the problem could not arise until recently There were however dicta to the effect that gestation was a key factor In the Ampthill Peerage case Lord Simon said Motherhood is based on a fact being proved demonstrably by parturition This obiter dictum derived from the saying mater est quam gestation demonstrate motherhood is proved demonstrably by parturition but since it is most unlikely that his lordship could have imagined any other alternative were possible it is not a particularly convincing citation emphasis added 83 In Hayes Williams Family Law Gilmore Glennon 3 rd edn Oxford University Press 2012 under the heading Legal Parenthood Motherhood at pp 357 358 it is stated Lord Simon of Glaisdale in the Ampthill Peerage Case stated that motherhood although a legal relationship is based on a fact being proved demonstrably by parturition These words do not equate giving birth with motherhood they speak of proving motherhood It could be argued therefore that as a matter of common law the underlying basis for motherhood might be a genetic connection as evidenced by parturition Usually of course there is not issue because the woman carrying the child will also be the genetic mother However a woman can now give birth to a child to whom she is not genetically related for example where an embryo is implanted in her which has been created with the egg of another woman Is the woman who gave birth the mother of the child or is the woman who donated her egg the mother emphasis in original 84 In the abstract of an article by D Alton Harrison Mater Semper Incertus Est Who s Your Mummy 2014 Medical Law Review 27 it is stated In English law the legal term for father has been given a broad definition but the definition of mother remains rooted in biology with the Roman law principle mater semper certa est the mother is always certain remaining the norm However motherhood may be acquired through giving birth to a child by donation of gametes or by caring and nurturing a child so that the identity of the mother is no longer certain particularly in the case of surrogacy arrangements 85 The English literature is noteworthy as it acknowledges the uncertainty surrounding the basis of motherhood in light of modern scientific and medical advances 86 Academia has made reference to mater semper certa est as any of the following a maxim ancient dictum norm and roman law principle Indeed there does not exist any agreement amongst the academic literature as to the status of mater semper certa est Further there does not appear to be any authority to suggest that it is either an irrebuttable presumption or that it is enshrined as a maxim of Irish public law as argued by the appellants 87 The only reference to mater semper certa est in Irish case law that I can find is that contained in the obiter dicta of Walsh J in O B v S I R 316 In that case Walsh J stated that it was desirable to make reference to the decision of the European Court of Human Rights in Marckx v Belgium After finding that the European decision could have no bearing on the question to be determined on that particular case he stated at p 338 In so far as it deals with the question of the obligation to establish the relationship between the mother and the child which was necessary under Belgian law that point does not arise in this jurisdiction as the maxim mater semper certa est did not apply in Belgian law but does apply in Irish law by reason of the provisions of ss 1 7 and 28 of the Births and Deaths Registration Act Ireland 1880 88 It appears to me that in fact the maxim mater semper certa est was not part of the common law of Ireland It was a statement which recognised the medical and scientific fact that a birth mother was the mother of a child The common law of Ireland has not addressed the issue of motherhood in a surrogacy situation Statutory Law 89 Walsh J in O B v S 1984 I R 316 at p 338 as quoted above stated that the maxim mater semper certa est applied in Irish law by reason of ss 1 7 and 28 of the Births and Deaths Registration Act Ireland 1880 Section 1 of the above Act of 1880 provided In the case of every child born alive after or whose birth has not been registered previous to the commencement of this Act it shall be the duty of the father and mother of the child and default of father and mother of the occupier of the house in which to his knowledge the child is born and of each person present at the birth and of the person having charge of the child to give to the registrar within forty two days next after such birth information of the particulars required to be registered concerning such birth and in the presence of the registrar to sign the register 90 Section 7 of the said Act of 1880 provided In the case of an illegitimate child no person shall as father of such child be required to give information under this Act concerning the birth of such child and the registrar shall not enter in the register the name of any person as father of such child unless at the joint request of the mother and of the person acknowledging himself to be the father of such child and such person shall in such case sign the register together with the mother 91 Under Miscellaneous provisions of the Act of 1880 s 28 provided An entry or certified copy of an entry of a birth or death in a register under the principal Act or in a certified copy of such a register shall not be evidence of such birth or death unless such entry either purports to be signed by some person professing to be the informant and to be such a person as is required by law at the date of such entry to give to the registrar information concerning such birth or death or purports to be made upon a certificate from a coroner or in pursuance of the provisions of this Act with respect to the registration of births and deaths at sea or in pursuance of section six of this Act When more than three months have intervened between the day of the birth and the day of the registration of the birth of any child the entry or certified copy of the entry made after the commencement of this Act of the birth of such child in a register under the principal Act or in a certified copy of such a register shall not be evidence of such birth unless such entry purports a If it appear that not more than twelve months have so intervened to contain a marginal note that a statutory declaration has been made by a properly qualified informant b If more than twelve months have so intervened to have been made with the authority of the Registrar General and in accordance with the prescribed rules 92 However the said statute reflects merely a factual situation of 1880 that the birth mother was the mother Neither science nor medicine allowed for a situation in which a woman other than the gestational mother was the genetic mother of a child The Act of 1880 was repealed by the Civil Registration Act 2004 93 The Civil Registration Act 2004 s 19 provides Subject to the provisions of this Part when a child is born in the State it is the duty of a the parents or the surviving parent of the child or b if the parents are dead or incapable through ill health of complying with the subsection each other qualified informant unless he or she reasonably believes that another qualified informant has complied with it in relation to the birth not later than 3 months from the date of the birth i to attend before any registrar ii there to give to the registrar to the best of his or her knowledge and belief the required particulars of the birth and iii there to sign the register in the presence of the registrar Section 60 8 of the same Act provides A person who is dissatisfied with a decision including a revised decision of an tArd Chláraitheoir may appeal against it to the High Court 94 Both the Births and Deaths Registration Act Ireland 1880 and the Civil Registration Act 2004 are similar in purpose They are Acts to provide for inter alia the registration of births 95 The Status of Children Act 1987 as described in its long title was an Act to equalise the rights of children and to amend the law relating to legitimacy It does not provide a statutory structure by which the alteration of maternal legal status in the situation of a surrogacy arrangement can be achieved 96 Neither the Civil Registration Act 2004 nor the Status of Children Act 1987 as amended or any other legislation has been passed by the Oireachtas to address the issues which arise on surrogacy arrangements Legislation to date in Ireland has not addressed the issues arising as a result of surrogacy arrangements As a significant social matter of public policy it is clearly an area for the Oireachtas and it is not for this Court to legislate on the issue The Commission on Assisted Human Reproduction 97 The Commission on Assisted Human Reproduction was established in March 2000 The terms of reference approved by the Government were to prepare a report on the 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 98 The Report states that it was established against the backdrop of growing public concern that such complex and potentially controversial Assisted Human Reproduction AHR procedures are being practiced in Ireland in the absence of any legislative controls 99 The Commission of 25 members and additional Working Group members delivered its Report in April 2005 Its principle recommendation was the establishment of an independent statutory regulatory body to regulate assisted human reproduction services in Ireland 100 The Commission also made a number of additional recommendations including inter alia guidelines in relation to a number of aspects of assisted human reproduction such as the freezing and storing of gametes super ovulation freezing and abandonment of extra gametes etc 101 The Commission considered how best to address the legal and ethical concerns surrounding surrogacy It recommended that surrogacy be permitted subject to regulation by the statutory regulatory body In its Report the Commission stated that as far as possible Regulations should be introduced that would protect the various interests of all parties to a surrogacy arrangement with particular reference to the interests of any resulting children The Commission noted that it was likely as the law then stood and as a corollary as the law currently stands that the surrogate or birth mother would be considered to be the legal mother of the child 102 In relation to legal parentage of a child born through surrogacy the Commission considered four suitable options open to the legislature and recommended that the child born to such an arrangement be presumed to be that of the commissioning couple This the Commission stated allowed enough flexibility in relation to the legal parentage of the child in circumstances where there was a fundamental change in the circumstances under which the surrogate mother consented to the agreement 103 The Commission recommended that new legislation should be introduced to establish an independent and regulatory body to regulate the provision of assisted human reproduction in this jurisdiction The Commission recommended that surrogacy come within the ambit of this statutory regulatory body Conclusion 104 There is a core issue on this appeal It is as to the registration of the mother under the Civil Registration Act 2004 On the question of who is the mother a quotation from Lord Simon of Glaisdale in The Ampthill Peerage case 1977 AC 547 has echoed throughout and was initially followed in many common law jurisdictions He stated at p 577 Legitimacy is a status it is the condition of belonging to class in society the members of which are regarded as having been begotten in lawful matrimony by the men whom the law regards as their father Motherhood although also a legal relationship is based on fact being proved demonstrably by parturition Fatherhood by contrast is a presumption emphasis added 105 That statement of Lord Simon is evocative of its time It reflects a different society and a time prior to the modern scientific and medical developments of assisted human reproduction 106 Following in the slip stream of modern medical developments in assisted human reproduction other States have passed legislation to govern and regulate the area 107 Such statutory development has not occurred yet in Ireland 108 The appellants have placed great reliance on what they referred to as a legal maxim mater semper certa est 109 As discussed above I am not satisfied that a maxim or principle mater semper certa est has been part of our common law 110 However whether such a maxim or principle was part of our common law or not is not determinative of this case The words were a simple recognition of a fact which existed prior to the modern development of assisted human reproduction 111 There have been statutory developments in other jurisdictions to address issues which arise where there has been assisted human reproduction Legislatures have recognised the need to address issues that now arise as a result of scientific and medical developments enabling children to be born in circumstances such as surrogacy 112 Neither the Status of Children Act 1987 nor the Civil Registration Act 2004 or any legislation in Ireland currently address the issues arising on surrogacy birth of children 113 Any law on surrogacy affects the status and rights of persons especially those of the children it creates complex relationships and has a deep social content It is thus quintessentially a matter for the Oireachtas 114 As stated earlier there is no definitive definition of mother in the Constitution Nor is there anything in the Constitution which would inhibit the development of appropriate laws on surrogacy 115 The words mater semper certa est upon which the appellants laid much stress is not the basis of Irish law on the issue before the Court The words simply recognise a fact which existed in times gone by and up until recently that a birth mother was the mother both gestational and genetic This was the factual situation until scientific and medical advances enabled persons to avail of assisted human reproduction 116 There is a lacuna in the law as to certain rights especially those of the children born in such circumstances Such lacuna should be addressed in legislation and not by this Court There is clearly merit in the legislature addressing this lacuna and providing for retrospective situations of surrogacy 117 Under the current legislative framework it is not possible to address issues arising on surrogacy including the issue of who is the mother for the purpose of the registration of the birth 118 The issues raised in this case are important complex and social which are matters of public policy for the Oireachtas They relate to the status and rights of children and a family It is important that the rights of the twins the parent respondents the notice party and the family are vindicated pursuant to the law and the Constitution Neither the common law nor statutory law to date address the issue of the registration of the fourth named respondent on the certificate of birth of children born by a surrogacy arrangement 119 For the reasons given I would allow the appeal and quash the orders of the High Court 32 THE SUPREME COURT APPEAL No 263 2013 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 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 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 However I am of the opinion that the word mother in this Article has a meaning specific to the Article itself which is related to the existence of the unborn which was held by the Supreme Court in the frozen embryo case of Roche v Roche to have an existence only when the foetus was in the womb and not otherwise 102 I am particularly influenced by the passages cited on behalf of the applicants in the judgments of Fennelly J and Geoghegan J pointing to the specificity of that amendment It is clear from the judgments of Fennelly J in N v Health Service Executive and J McD v PL that the concept of blood relationships or links are paramount in deciding parenthood It should be determined what the courts meant by blood relationships or links In the case of paternity it was easy enough to answer this question It was paternity established through a DNA link as proven a by scientific test or otherwise if necessary by a blood test under the 1987 Act However Ms O Toole eloquently argued that to proceed from this conclusion to argue that maternity should likewise be determined on the same blood test procedure was to compare apples with oranges She argued that this comparison did not recognise the fundamental difference between motherhood and fatherhood and pointed to the evidence in relation to epigenetics and the more dramatic incidence of how a mother s cocaine consuming habits could result in physical deformities to children and also the experience of persons born with deformities as a result of medical treatment by thalidomide and the like 103 In view of my findings in relation to the determinative nature of chromosomal DNA I find that while the input of a gestational mother to an embryo and foetus not containing genetic material from her is to be respected and treated with the care and prudence which the best medical practice dictates the predominant determinism of the genetic material in the cells of the foetus permits a fair comparison with the law and standards for the determination of paternity It would be invidious irrational and unfair to do otherwise In reaching this conclusion I am supported by current legislative practice in the most recent Adoption Act of 2010 where the legislature recognised the importance of blood relationships by ensuring control at High Court level of the process by which a mother proposing to consent to adoption would at least be counselled in relation to the importance of knowing the genetic background of a child which is proposed to be adopted 104 The final question is whether in view of the conclusions of this judgment in relation to the fair comparison between fathers and mothers for the purpose of establishing blood relationships and the feasibility of a maternal DNA test to facilitate registration the application of the maxim mater semper certa est as an irrebuttable presumption is consistent with fair procedures under the Constitution The judgment of O Hanlon J in S v S relating to the irrebuttable presumption in certain cases relating to paternity within marriage is ample authority to enable the court to conclude that the presumption of mater semper certa did not survive the enactment of the Constitution insofar as it applies to the situation post IVF To achieve fairness and constitutional and natural justice for both the paternal and maternal genetic parents the feasible inquiry in relation to maternity ought to be made by on a genetic basis and on being proven the genetic mother should be registered as the mother under the Act of 2004 The conclusion does not raise the consideration of the best interest of the child which in most cases if not in all would be best served by an inquiry of the genetic interest 105 As a subtext to the discussions before the Court and by way of final check in relation to the conclusions of the Court it is important to assume that the Court inquired in relation to international consensus in particular European consensus in relation to the applicability of the irrebuttable presumption of mater semper certa est An tArd Chláraitheoir indicated that there was in fact a European consensus among a number of governments including the Irish Government that the irrebuttable presumption was still accepted internationally as the appropriate point of departure in relation to dealing with surrogacy questions This perceived international position and the widespread historic acceptance of the principle of mater semper certa est although not a specific binding international instrument of legislation is nevertheless authorative or at least the cause of taking a pause for thought in a critical sense in relation to the conclusions to which the Court has been driven in this judgment so far I am strongly of the view that this so called international and historic consensus should not restrain the Court from making the conclusions so far appearing in this judgment for the reason that the Attorney General did not advance any detailed comparative law analysis to show why this consensus had arisen apart from historical convention such as instances of some of the constituent jurisdictions of the international consensus and having by their positive laws actually making the contract of surrogacy absolutely illegal and void and introducing other positive law dealing with surrogacy which specifically by a statutory code recognised the maxim of mater semper Indeed in a situation where a jurisdiction had moved legislatively to declare the surrogacy contract illegal it would follow that the maxim mater semper certa est would be an irrebuttable presumption regardless of statutory enactment of same As distinct from such an atmosphere of positive legislative enactment banning the surrogacy contract or positively co defining the irrebuttable nature of mater semper est the situation in this jurisdiction is one where positive legislation on this area is totally absent meaning that the surrogacy contract in this case is not illegal As Mr Durcan SC said the surrogacy contract and arrangements pursuant thereto leading to the birth of a child do not lead to any wrong whether of a criminal or civil nature in this jurisdiction The only weakness of the surrogacy contract in the Irish legislative context or in the context of the common law of this jurisdiction as agreed by all parties and held by the Court that its performance would not be enforceable by any court There is nothing in the Irish legislative context that positively affirms the maxim of mater semper certa est or for that matter makes illegal any surrogacy contract Therefore the Court should not be swayed from its conclusions or doubt same by reason of the assertion of this so called European consensus 106 I am thus disposed to grant declarations in the forms sought in paras 1 and 2 of the claim of the special summons herein High Court Order 15 The High Court granted the following declarations a A declaration that the fourth named respondent is the mother of the first and second named respondents the twins pursuant to s 35 8 b of the Status of Children Act 1987 or otherwise pursuant to the inherent jurisdiction of the Court and b A declaration that the fourth named respondent is entitled to have the particulars of her maternity entered on the Certificate of Birth and that the first and second named respondents are entitled to have the particulars of their relationship to the fourth named respondent recorded on their Certificates of Birth Notice of Appeal 16 The State appealed against the judgment and orders filing 29 grounds of appeal as follows that i The learned trial judge erred in both fact and law in not concluding that the gestational mother the notice party is the mother of the children whom she bore and gave birth to the first and second named respondents the twins ii The learned trial judge erred in both fact and law in concluding and declaring that an individual the fourth named respondent other than a gestational mother could be regarded in law as the legal mother of the children iii The learned trial judge erred in both fact and law in concluding that maternity is defined only by reference to the chromosomal DNA in circumstances where the genetic material was supplied by the third and fourth named respondents but where the gestational mother was another person the notice party iv The learned trial judge erred therefore in placing overwhelming weight on chromosomal DNA as being determinative of maternity v The learned trial judge erred in not placing the relevant and sufficient weight on the biological role of the gestational mother the notice party in coming to the conclusion that the fourth named respondent is the mother of the first and second named respondents vi The learned trial judge erred in fact and law by not placing sufficient weight on the fundamental distinctions which exist between maternity and paternity and motherhood and fatherhood taking into account the evidence presented in this respect specifically in relation to maternal gestation vii The learned trial judge erred in law in concluding that blood relationships or links are paramount in deciding parenthood and that the said blood relationship or link equated to the genetic link only viii The learned trial judge erred in law and fact in concluding that while the input of the gestational mother to an embryo and foetus not containing genetic material from her is to be respected and treated with care and prudence the predominant determinism of the genetic material in the cells of the foetus permits for a comparison with the law and standards for the determination of paternity In this respect the learned trial judge erred in making an equal comparison of maternity to paternity and therefore erred in declaring the fourth named respondent as the mother of the first and second named respondents ix The learned trial judge erred in law in finding that the term mother as it appears in Article 40 3 3º of the Constitution has a meaning only specific to the Article 40 3 3 itself which is related

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  • s 35 provides that Where on an application under this section it is proved on the balance of probabilities that a a person named in the application is the father or b a person so named is the mother or c persons so named are the parents of the applicant the Court shall make the declaration accordingly In this case the t Ard Chláraitheoir has indicated that should the Court make a declaration that the fourth named applicant is the mother he will amend the particulars of birth entered in the Register of Births as required by s 19 of the Civil Registration Act 2004 39 Such an application has of course been made pursuant to that section by the children concerned who brought the proceedings through their father and next friend What has been established as a fact is that the fourth named applicant is the genetic mother of the children and that the Notice Party is their birth mother 40 When interpreting a statutory provision it is the task of the courts to give effect to the intention of the Oireachtas as expressed in the words of the statute Although it is not always a straightforward task any departure from that essential principle would lead the courts to trespassing on the constitutional legislative role attributed exclusively to the Oireachtas by the Constitution In Crilly v T J Farrington Limited 2001 3 I R 251 I had occasion to state The phrase intent of the legislature is on a casual view ambiguous because it does not expressly convey whether it is the subjective intent or the objective intent of the legislature which is to be ascertained Manifestly however what the courts in this country have always sought to ascertain is the objective intent or will of the legislature This is evident for example from the rule of construction according to which when the meaning of the statute is clear and definite and open to one interpretation only in the context of the statute as a whole that is the meaning to be attributed to it 41 I would also refer to the statement of Lord Nicholls in R v Secretary of State for the Environment 2001 2 WLR 15 as I did in Crilly where he explores the meaning of the phrase intention of parliament Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context The task of the court is often said to be to ascertain the intention of parliament expressed in the language under consideration This is correct and may be helpful so long as it is remembered that the intention of Parliament is an objective concept not subjective The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used It is not the subjective intention of the minister or other persons who promoted the legislation Nor is it the subjective intention of the draftsman or of individual members or even of a majority of individual members of either House These individuals will often have widely varying intentions Their understanding of the legislation and the words used may be impressively complete or woefully inadequate Thus when the courts say that such and such a meaning cannot be what Parliament intended they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning As Lord Reid said We often say that we are looking for the intention of Parliament but that is not quite accurate We are seeking the meaning of the words which Parliament used 42 Accordingly the intent of the Oireachtas is to be imputed to it on the basis of the text of the Act adopted in this case the Act of 2004 43 The Civil Registration Act 2004 refers to mother simpliciter and it is she who must be registered as such The Act envisages the existence of only one person who is the mother The question which the applicants seek to pose is whether it refers only to the woman who gives birth to the baby or in a case of the implantation of a fertilised ovum in the womb of the birth mother does it refer to the woman from whom the ovum was taken the genetic mother Thus it is self evident that the Act does not refer to two possible mothers in respect of the same birth Moreover whichever mother it is she is entitled to be registered under the Act as a right without the consent of the other 44 It cannot be doubted that under the provisions of the Births Deaths Registration Act Ireland 1880 until its repeal and replacement by the Act of 2004 the reference to the registration of a mother as part of the particulars of birth referred to the birth mother 45 A degree of reliance was placed by the respondents on the maxim mater semper certa est as being a governing principle of the common law reflecting a shared fundamental truth expressed in the oft quoted passage of Lord Simon in Ampthill Peerage 1977 A C 547 at 577 Motherhood although also a legal relationship is based on a fact being proved demonstrably by parturition Fatherhood by contrast is a presumption 46 It was debated in the course of argument whether this maxim originating in Roman law could be treated as being a substantive principle of the common law I feel this issue distracts from rather than clarifies the central question of interpretation in this case A maxim has been defined as a short pithy statement expressing a general truth It is in a sense a sobriquet for such a recognised or universally accepted truth and has been used judicially as such It is a sobriquet for the accepted fact and the legal relationship expressed by Lord Simon This is what society and the law has accepted namely that the mother who gives birth to a child is in fact the mother of the child Statute law recognised that fact 47 This is borne out by the statement of Walsh J in O B v S 1984 I R 316 when he stated t he maxim mater semper certa est did not apply in Belgian law but does apply in Irish law by reason of the provisions of ss 1 7 and 28 of the Births and Deaths Registration Act Ireland 1880 at page 338 emphasis added 48 So however one may perceive the origins of the maxim mater semper certa est and its position as part of the general principles of common law the underlying legal reality is that statutory law in Ireland as Walsh J has pointed out recognises the fundamental truth reflected in that maxim by virtue of the statutory provisions in the Act of 1880 itself It was part of our law by virtue of the statutory provisions to which Walsh J referred None of this of course is surprising because statute law was simply recognising what society recognised that the only person who could or should be treated at birth as the mother is the mother who gave birth to the child 49 The Act of 2004 repealed and replaced the Act of 1880 Its purpose and role in relation to the registration of births is precisely the same 50 Section 19 of that Act demands that the required particulars of the birth be given to a Registrar It focuses primarily on the fact of birth In the First Schedule following a reference to date place and time of birth it then specifies that details of the name of the mother be given for the purposes of registration It seems to me self evident that what qualifies a mother for registration is that she is the mother who gave birth No criteria or reference point for registration such as from whom the fertilised ovum came or the like is mentioned expressly or implicitly 51 The fact remains that the birth mother nurtures the foetus and child from the earliest beginnings of life to its birth in this world As I observed in Roche v Roche Others Of course the gestation and birth of a child is inextricably and humanly linked to the mother and its development in the womb While that statement was undoubtedly made in the context of a case where no surrogacy was involved nonetheless the inextricable human empathy and nexus must and does exist between a woman and a child who has been brought to life and birth through her womb can hardly be denied as if she was a vessel of convenience Because for personal reasons and particular circumstances including surrogacy she willingly consents after birth to the welfare and custody of the child being transferred to a genetic mother just as a mother may consent to have her child placed for adoption cannot take away from that underlying reality 52 Moreover if the biological or genetic mother was to be deemed the only mother for the purpose of registration it would exclude from registration a birth mother who had availed of assisted reproduction with the aid of another woman s ovum in order to have a child of her own I cannot conclude that the 2004 Act was intended by the Oireachtas to regulate status and rights in such complex situations in the manner claimed by the applicants 53 I am quite satisfied that if the Oireachtas intended when enacting the Act of 2004 to regulate these matters and to radically alter the basis on which a person qualified for registration as the mother of a child to the compulsory exclusion of the birth mother it would have made overt and express provision for doing so The myriad of circumstances which can arise when one moves away from the anchor point of the birth mother being treated as the mother of a child have been referred to in general terms at the outset of this judgment As I have also previously mentioned that if the applicants assertions as to the interpretation of the Act of 2004 are correct then the genetic mother would be entitled to be registered as the mother of a child without the consent indeed in the teeth of an objection from the birth mother 54 In my view the term mother in the Act of 2004 bears the meaning which it did in the preceding legislation which it repealed and replaced There is nothing in the terms of the Act of 2004 suggesting that the term mother should be not understood to mean what it has heretofore meant in law and fact 55 Undoubtedly the fact that scientific developments has made it possible for the genetic mother and the birth mother to be different persons may lead to changes in the law But that is a matter for the Oireachtas It is true that the applicants have argued that certain provisions of the Status of Children Act 1987 alter the statutory criteria by which the mother of a child was to be ascertained and determined for the purposes of the Act of 2004 Section 38 of the 1987 Act provides that in any civil proceedings in which the parentage of any person is in question the court may give a direction for the use of blood tests for the purpose of assisting the court to determine whether any person is or is not a parent of the person whose parentage is in question It was pointed out on behalf of the applicants that the term blood test is defined in the Act as meaning any test made with the object of ascertaining inheritable characteristics By virtue of these provisions an argument was made that the effect of the Act of 1987 meant that parenthood including motherhood should be determined exclusively by reference to inheritable characteristics In a surrogacy birth the birth mother did not pass on any inheritable characteristics to the child born but the genetic mother did 56 I do not consider that these provisions of the Act of 1987 have any bearing on the interpretation to be given to the Act of 2004 In fact I think it is self evident from any reasoned reading of the different Acts There may be a variety of circumstances in which particularly long after birth has taken place issues or disputes may arise as to the parenthood of a particular individual Such issues could arise in proceedings concerning succession rights to a deceased s estate or in a paternity suit Nonetheless there is nothing in the Act of 1987 to suggest that the notion of father or mother was to be considered anything other than that as traditionally understood Blood tests self evidently could be helpful evidence as to parenthood Test results could be inconclusive or could exclude a particular person from being a parent father or mother Certainly DNA tests nowadays could give a definitive answer to genetic links Nonetheless as the relevant section makes clear blood tests were there to assist the court in trying any civil issue as to who is a parent mother or father There is nothing in the Act to suggest that the legal notion of mother is a reference to anyone other than the birth mother The tests which may be directed by the court for the purposes of the 1987 Act are intended to assist the court in determining whether that is in fact the case in proceedings concerning a particular person There is nothing in the provisions of the Act of 1987 which in my view could be said to alter the ordinary and natural meaning of mother as contained in the provisions of the Civil Registration Act 2004 nor in its predecessor the Act of 1880 57 The reliance of the applicants on the provisions of the Constitution was of a limited nature They argued that the term mother was not defined in the Constitution and that the Constitution should therefore not be interpreted as prohibiting or restricting an interpretation of the meaning of mother in the Act of 2004 such as the one for which they had argued In short it was argued that the Constitution did not mandate that the term mother as contained in the Act of 2004 be interpreted as referring only to the birth mother Of course the applicants did not argue that the Constitution mandated the interpretation for which they have argued in circumstances where there is a surrogate birth If they had done so then they would have had to argue that the provisions of the Act were unconstitutional if they did not permit the interpretation for which the applicants argued This was not part of the applicants case In short the applicants argued that the notion of mother so far as it exists in the Constitution neither mandated nor prohibited an interpretation of the Act of 2004 as entitling a genetic mother to be registered as the mother in the case of a surrogate birth 58 Since I am of the view that by virtue of the ordinary and natural meaning to be attributed to the provisions of the Act of 2004 is such that the term mother in the Act refers as the Oireachtas intended to the birth mother It is not therefore necessary to examine in the context of the issues in this case the meaning of mother as it occurs in the Constitution 59 The issue of statutory interpretation is the only issue which arises for decision in this case 60 As to the argument advanced by the Amici Curiae based on the constitutional guarantee of equal treatment in particular by reference to the judgment of O Hanlon J in S v S 1983 I R 68 I agree with the conclusions of O Donnell J in this regard Conclusion 60 For the reasons outlined in the judgment I conclude that the reference to mother in the provisions of the Civil Registration Act 2004 can only be interpreted as intended by the Oireachtas to refer to the mother who gave birth to the child It is she who must be registered as the mother Registration of the name of a mother as particulars of the birth is compulsory There is nothing in the language of the Act from which it would be considered that the Oireachtas intended that the genetic mother or biological mother be registered to the automatic exclusion of the birth mother 61 As I have explained earlier in my judgment any law prohibiting or governing the myriad of circumstances which can arise where births occur through surrogacy must as is internationally recognised address fundamental issues of a social ethical and moral nature This necessarily involves the making of value judgements and the formulation of best policy as to the status and rights of genetic mothers birth mothers as well as the welfare and dignity of the children involved 62 How these complex issues concerning such rights status and welfare can be addressed taking account of competing or even conflicting values is quintessentially a matter for a legislature The courts do not in my view have at their disposal objective criteria to lay down some golden rule or series or principles which would govern such matters As I stated in Roche v Roche Others 15th December 2009 The courts do not in my view have at their disposal objective criteria to decide this as a justiciable issue Issues are not justiciable before the courts where there is as Brennan J put it in his opinion in Baker v Carr 369 U S 186 1962 a lack of judicially discoverable and manageable standards for resolving it or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion 63 In this case there is a manifest lacuna in the law Surrogacy is neither authorised by law nor prohibited by law It is for the Oireachtas to make the value judgement based on best policy as other countries have had to do as to whether and if so in what circumstances assisted reproduction by means of surrogacy should be permitted 64 For the reasons set out above I would allow the appeal and set aside the order of the High Court THE SUPREME COURT Appeal No 263 2013 Denham C J Murray J Hardiman J O Donnell J McKechnie J Clarke J MacMenamin J IN THE MATTER 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 AND O R AND C R APPLICANTS RESPONDENTS AND AN t ARD CHLÁRAITHEOIR IRELAND AND THE ATTORNEY GENERAL RESPONDENTS APPELALNTS AND L L NOTICE PARTY THE EQUALITY AUTHORITY AND THE IRISH HUMAN RIGHTS COMMISSION AMICI CURIAE Judgment of Mr Justice John L Murray dated the 7th day of November 2014 1 The issue in this appeal concerns a question of statutory interpretation namely certain provisions of the Civil Registration Act 2004 Central to that interpretative issue is the meaning of the word mother as used in the Act 2 This is not a case which gives rise or could give rise to the Court assuming the role of law maker and laying down some golden principle or a series of principles regulating the legal status that might be accorded to a biological mother or a birth mother where children are born to the latter arising from a surrogacy arrangement with the former For reasons explained later in this judgment to do so would be to usurp the role of the Oireachtas as the institution authorised by the Constitution to make laws Background Facts 3 The proceedings have been brought by the third and fourth named applicants a married couple who have been unable to have children because the fourth named applicant was diagnosed with a medical condition in her late teens This means that she does not have a uterus and is therefore unable to become pregnant Accordingly the couple were placed in the unhappy position of being unable to have a family In this situation they decided to have recourse to a form of assisted reproduction known as surrogacy In this particular case the couple entered into an agreement with the fourth named applicant s sister who is a notice party to the proceedings whereby ova of the fourth named applicant fertilised by the sperm of her husband the third named applicant were implanted in the sister s womb In the parlance of surrogacy arrangements and for the sake of clarity it is necessary to refer to the fourth named applicant as the commissioning mother or the biological or genetic mother and her sister as the birth mother The commissioning couple and the birth mother entered into an agreement which sought to govern the rights of all parties with regard to the children to be born as a result of the surrogacy arrangement The process of obtaining the fertilised ova of the biological mother and implanting them in the womb of her sister the birth mother took place with the assistance of a Fertility Clinic in Dublin Following upon the implantation of fertilised ova and the gestation in the womb of the birth mother for the period of 9 months the twins were duly born On their birth in 2013 the commissioning parents took care and custody of the twins with the consent of the birth mother By virtue of that consensual arrangement the couple have since cared for the children as their own children 4 On the birth of the twins an attempt was made to have the biological mother registered as mother of the twins The third named applicant was registered as the father because of the fact of fatherhood in this case and because fatherhood can be acknowledged No issue turns on that 5 In these circumstances the birth mother was registered as the mother of the twins it being the view of the first named respondent An t Ard Chalaraitheoir that in the relevant legislation the reference to mother meant the mother who had given birth to the children This situation was obviously not acceptable to the father and to the birth mother and subsequently an application was brought pursuant to s 35 of the Status of Children Act 1987 for a declaration that the biological mother be named and registered as mother of the children to the exclusion of the birth mother This was done with the agreement of the birth mother the biological mother s sister This application was refused again on the grounds that for the purposes of the relevant statutory provisions mother must be interpreted as referring to the birth mother As a consequence these proceedings were initiated seeking a declaration that the birth mother was entitled to be registered as the mother of the children pursuant to s 35 of the Act of 1987 6 It is an important element of the background facts in this case that the surrogacy arrangement was arrived in what one might describe as benign circumstances There was at all times a complete consensus between the third and fourth applicants and the latter s sister the birth mother concerning the surrogacy arrangements and the subsequent care and custody of the children following their birth This close and consensual arrangement involving two sisters makes it in the particular circumstances of the case an attractive one from a human point of view to resolve in favour of the parties concerned However the legal issues arising in this case cannot turn on such a view of this particular surrogacy arrangement Neither can the resolution of the legal issues raised be dependent or affected by the existence of the consent of the birth mother in this case As will be explained the applicants seek to assert that as a matter of statute law the biological mother should for the purposes of being registered be treated as the mother of the children to the exclusion of the birth mother and is not contingent on the consent of the latter If the applicants are correct in the statutory position which they assert it means that the biological mother in surrogacy arrangements will as a matter of law be treated as the mother in all circumstances even where the birth mother objects Surrogacy 7 Since time immemorial and perhaps more relevant for most of the 20th century the only mother known to society was a mother who gave birth to the child That is the position as of the birth of the child It is a matter of fact The law reflected that fundamental truth and the only mother known to the law has been the mother who gave birth to the child 8 Post birth circumstances can give rise to the existence of an adopted mother foster mother and so on of which the most important is of course the adopted mother who becomes the mother of the child in a real sense These of course arise post birth and more important with the consent of the mother who gave birth save in very exceptional circumstances where it is proved to put it broadly that the mother is incapable in any proper way of giving parental care to the child 9 Modern science has as we know radically altered the manner and circumstances in which an ovum may be fertilised outside the womb and implanted in another womb and whose womb that will be There are a range of forms of assisted reproduction of which surrogacy is generally recognised as being the most controversial It means that biological elements of a child are in such a case attributable to a person other than the mother who has given birth 10 Generally there are said to be two kinds of surrogate mothers a Traditional surrogates Artificial insemination first made surrogacy possible A traditional surrogate is a woman who is artificially inseminated with the father s sperm She then carries the baby and delivers it for the parents to raise A traditional surrogate is the baby s biological mother That is because it was her egg that was fertilised by the father s sperm Donor sperm can also be used for a traditional surrogacy Even with this form of surrogacy there are of course variations as to whom it is intended by those involved should raise the child as a parent or parents b Gestational surrogates In vitro fertilisation IVF now makes it possible to harvest eggs from the biological mother fertilise them with the sperm of the father and place the embryo in the uterus of a gestational mother That mother then carries the baby until birth Such mother has no genetic ties to the child She does have ties that are intrinsic to a pregnant mother who has nurtured the child in the womb from implantation of the fertilised egg to birth 11 It is internationally recognised that whether and if so in what circumstances surrogacy should be permitted in law gives rise to issues of a fundamental nature in an ordered society and requires the law maker to make social ethical and moral judgments In some countries any form of surrogacy is prohibited by law in others it is strictly regulated invariably for policy reasons based on those social ethical and moral considerations In some countries the reasons for prohibiting surrogacy would appear to include protecting the dignity of the mother who gives birth as well as the dignity and rights of the children which it is felt could be compromised by putting them in the position of having two mothers that is to say the mother who gave birth to them and the biological mother In any event it seems evident from the limited material at the disposal of the Court that all laws prohibiting or regulating surrogacy have been formulated after sedulous consideration of these social bio ethical and moral issues What these ethical and moral considerations or issues are or might be have not been raised or examined in any meaningful way in these proceedings whether in the High Court or in the Supreme Court 12 In essence the applicants make the case that irrespective of any such complex considerations the relevant statutory provisions must be interpreted as recognising the biological mother and only the biological mother as the mother of the children In short it is as if the legislature when allegedly enacting legislation with that intended effect must be assumed to have made all the value judgments necessary on these complex matters 13 It might well be seen as humanely desirable to fashion a legal answer to the problems of the applicants in this case which would allow the biological mother to be treated as a matter of law as the mother of the children However attractive as that solution might seem in this particular case a court has to look at the law objectively since that law governs the status of birth mothers vis a vis their children and biological mothers generally and not simply the circumstances of this particular case 14 The core scientific evidence concerning the genetic role of the commissioning parents in a case such as this is not in dispute That evidence included the fact that the uniqueness of a human being is complete at fertilisation when the sperm and ovum have come together The sperm from the genetic father and the ovum from the genetic mother provide the full compilation of genetics that then ultimately give rise to who we are Judgment of the High Court paragraph 6 The DNA ultimately controls everything The High Court also noted that while the gestational mother may affect the foetus in a molecular way she does not alter the DNA In short all the biological or DNA traits of a child born in this way stem from the genetic and commissioning parents On the other hand the pregnant mother can have an epigenetic influence on the evolution of the child in the womb Epigenetics is described as 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 although the DNA sequence is not altered as such The pregnant mother can also influence the child or the foetus in a process described as microchimerism This involves the migration of the mother s cells into the child and this is relevant to risk factors for auto immune diseases Core DNA however is not affected At least some of the epigenetic effects can be altered or reversed in post birth upbringing 15 In short the essence of the applicants case is that the father and the genetic mother of a child born after a surrogacy arrangement as in this case enjoy a unique and exclusive biological link with such a child by reason of which they are entitled as a right to be registered as the parents of the child to the exclusion of the mother who gave birth to the child The relevant statutory provisions and the word mother as used in them must be interpreted in that sense 16 Before turning to the issue of statutory interpretation it is necessary to look at least generally in the broader context including the variety of circumstances in which surrogacy arrangements can give rise to a genetic link between a woman who is not the birth mother of a child 17 A woman who is not able to produce her own ova may have implanted in her womb ovum from another woman and this ovum may be fertilised by sperm from the donee s husband or an anonymous donor The intention of such an arrangement is that the woman who has received the ovum can give birth to a child perhaps fathered by her husband and raise that child as her own even though there is a genetic link between the child and the birth mother If our current legislation as claimed by the applicants is to be interpreted as recognising the primacy of a genetic link between the mother providing the ovum and the child how are various apparently competing rights to be regulated in such a case 18 The genetic or biological link between a commissioning mother and the child is of undoubted importance However a purely genetic approach ignores the intrinsic connection that must be taken to exist between the birth mother and the child to which she gives birth after nurturing it in her womb from its earliest formation The mother will have lived with the growing foetus and child in her womb probably organised her lifestyle her eating habits her drinking habits as well as taking any other necessary measures to ensure that a healthy foetus develops into a healthy child She will have experienced physically and emotionally the various stages of evolution of the foetus in the womb and felt its movements or kicking at a later stage As Dr Maloney and Professor Greene both geneticists agreed in their evidence in the High Court the birth mother is not simply a vehicle for carrying the foetus There has been no serious examination in the judgment of the High Court of how the birth mother empathises and identifies with the child on its birth Certainly it may well be that in most cases of surrogacy arrangements that the birth mother is content and happy to follow through at the point of birth with the arrangement and give care and custody completely and finally to the commissioning mother or parents On the other hand there is no indication that any country permits and regulates surrogacy arrangements allows it to proceed to fruition without the birth mother giving her consent not only at the time of entering into a surrogacy agreement but after birth Such countries appear to insist upon ensuring the free and informed consent of the birth mother after birth and some that she be counselled on the hardship of giving away a child after bearing it 19 If consent of the birth mother is only required at the commencement of the pregnancy the question arises whether a law treating the genetic mother as having exclusive or overriding rights to the child on birth means that the child must be forcibly removed from the arms of the unwilling birth mother at birth There does not seem to be any country in which the law in surrogacy requires that to be done In recent months a case reported in the British media concerned a mother who had given birth to twins under a surrogacy arrangement and who decided that she wished to keep the babies She was reported as saying I nourished them to birth and went through a life threatening emergency caesarean to have them I would be devastated if they are taken away from me now It is my body which grew these babies I feel like their mother The law in the U K recognises the birth mother as the lawful mother and entitled to be registered as such unless she otherwise consents I mention the foregoing not as evidence of any fact but purely to illustrate in an anecdotal way that the scenario to which I have referred is not purely hypothetical but one of a range of complex questions concerning the status of mothers and children to which the whole process of surrogacy may give rise 20 Other reported situations giving rise to such complexity include circumstances where due to an error in the fertility clinic involved the wrong fertilised egg

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  • and were granted a declaration that the fourth named applicant was the mother of the first and second named applicants But this was not a declaration in the abstract It was a necessary step to the second declaration granted namely that the fourth named applicant had a right to have the birth certificates of the first and second named applicants altered and to be entered upon those birth certificates as their mother to the exclusion of the notice party who had been so registered by the first named respondent The first and second named applicants had it was held a corresponding right to have the fourth named applicant registered on their birth certificates as their mother I consider it therefore both fair and accurate to identify the precise question for this Court as this who on the acknowledged facts is entitled to be registered as the mother of the first and second named applicants on their birth certificates pursuant to the provisions of the Civil Registration Act 2004 That is in turn essentially a question of statutory interpretation The interpretation of statutes may of course also involve the interpretation of the Constitution both as potentially influencing the interpretation of the statute where that is required and possible or as possibly leading to the constitutional invalidity of the statute as interpreted But in the first place I consider that it is useful to approach this as a simple question of statutory interpretation what does the 2004 Act mean when it refers to mother In particular does it mean in this case the woman whose egg is fertilised and which develops through pregnancy into the baby who is born or does it mean the woman who gives birth to the baby or perhaps to both 28 This is not an easy question but it is useful to identify just what is not involved This is not a question of whether a genetic or a gestational mother provides more genetic material to a child Nor does it involve a question of policy as to who should be registered as a mother where the gestational and genetic mothers are not the same person now that we know for the first time in human history that it is possible to separate the functions of reproduction and birth into at least two if not more parts which can be carried out by at least two if not more people Nor does this case involve any question of the validity or enforceability of surrogacy agreements in this or in any other case Nor at least in my view does it involve any inquiry into the common law predating legislation such as the Births and Deaths Registration Act Ireland 1880 the 1880 Act or the existence and scope of any maxim of mater semper certa est To approach this case on the basis that because the word mother is not specifically defined in the 2004 Act it does not have a specific meaning in the relevant legislative context and that it is therefore necessary to consider the existence and persistence of a Latin maxim or the state of 19th century common law is in my view an error We should not be too quick to abandon the statutory context 29 Concepts such as presumptions whether rebuttable or irrebuttable and phrases and maxims may often be very useful to lawyers since they express reasonably precisely concepts which are well understood and in that way as helpful shortcuts may assist reasoning However if not properly deployed at times they can deflect from rather than assist reasoning It is true that Walsh J said in O B v S 1984 IR 316 t he maxim mater semper certa est does apply in Irish law by reason of the provisions of ss 1 7 and 28 of the Births and Deaths Registration Act Ireland 1880 p 338 But in my view at least that does not lead to a consideration of the application of a presumption irrebuttable or otherwise The important words in that sentence are by reason of Walsh J did not suggest that the maxim applied in Irish law prior to the enactment of the statute or applied more generally In effect all that that learned judge was saying in that passage was that the effect of the legislation was to require registration of the mother as the woman giving birth That legislation was in that form and contained that requirement no doubt because the Victorian legislators shared the universal assumption contained in the Latin maxim and put elegantly by Lord Simon of Glaisdale in Ampthill Peerage 1977 A C 547 at p 577 Motherhood although also a legal relationship is based on a fact being proved demonstrably by parturition Fatherhood by contrast is a presumption But whether that assumption was or more pertinently is now correct is strictly irrelevant to the legal issue of statutory interpretation in this case If indeed the 1880 Act requires registration of the birth mother as mother it does so by virtue of the statute and not because of any maxim or common law If these factual assumptions underlying the legislation has been falsified by subsequent developments and scientific knowledge then that may be a reason to change the legislation but it cannot change its meaning There are of course examples of cases in which courts have been able to adopt what has been described as an updating interpretation of legislation and this case illustrates at least one such circumstance The statutory concept of blood test for the purpose of ascertaining parenthood has been interpreted to include much more precise scientific tests In my view this case is not one of those limited circumstances in which this technique is available On the assumption for this aspect that the legislation whether in 1880 or in 2004 identified the person giving birth as the mother then to interpret the legislation to make the person providing the ovum and therefore the DNA as the mother rather than the birth mother would be to alter and reverse the original meaning of the legislation rather than merely interpreting it to apply not only to the original situation but also to a circumstance not envisaged at the time It follows that in my view the question is what the 2004 Act meant and still means when it required registration of a birth and in doing so registration of the mother 30 The 2004 Act is very similar in structure to the 1880 Act because of course it performs the same function The relevant provisions of s 19 containing the obligation to register the birth of a child have been set out Thus it is sufficient to point out that the provisions apply when a child is born in the State and a duty is imposed upon the parent and others to give the required particulars of the birth to the registrar The required particulars are set out in Part I of the First Schedule of the 2004 Act and include forename s surname birth surname address and occupation of mother former surname s if any of mother date of birth of mother marital status of mother personal public service number of mother and birth surname of mother s mother The same details are required in respect of the father 31 This is similar to the structure of the Births and Deaths Registration Act Ireland 1880 Section 1 of that Act provided that In the case of every child born alive it shall be the duty of the father and mother of the child and in default of the father and mother of the occupier of the house in which to his knowledge the child is born and of each person present at the birth and of the person having charge of the child to give to the registrar within forty two days next after such birth information of the particulars required to be registered concerning such birth and in the presence of the registrar to sign the register emphases added Again among the particulars required were the name and address of the mother It is perhaps noteworthy that both statutes for obvious reasons speak of mother in the singular and without a definite or indefinite article It is an indivisible or at least undivided concept 32 When this issue is approached as the narrow question of statutory interpretation of the identification of the person required to be registered as mother it becomes less complex It becomes apparent that the Act of 2004 follows the 1880 Act in contemplating registration of the birth mother as the mother As Learned Hand J observed in Cabell v Markham 1945 148 F 2d 737 it is necessary to remember that statutes always have some purpose or object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning p 739 Here the purpose of the 2004 Act and indeed the 1880 Act is plain It is to establish and maintain a system of registration That registration in this case is of the fact of birth The Act operates by reference to the date of birth and requires compliance within a fixed period thereafter While a birth certificate has subsequent importance as evidence its original and basic function is demographic The 1880 Act was part of the Victorian age s admirable urge for organisation cataloguing counting and defining and by that process providing an essential substratum of information for the understanding and governance of society The 2004 Act follows the same structure and performs the same function From the function it was intended to fulfil and the circumstances in which it operated it seems clear that under the Act the person to be registered on the birth certificate as mother under both the 1880 Act and the 2004 Act is unsurprisingly the person giving birth Science may have undermined or at least qualified the assumptions upon which the Act was based but that does not alter the interpretation of the Act 33 However it was argued by counsel for the applicant that the Status of Children Act 1987 had in effect changed the law so that the indicium of parenthood whether by paternity or maternity was the existence of a blood relationship originally only capable of disproof by blood testing but now capable of positive proof though DNA testing While at the time of passage of the 1987 Act there may have been no consideration of the possibility that the person providing the ovum and the DNA might not be the person giving birth the fact was that by permitting such blood testing in accordance with the then state of the art scientific knowledge the 1987 Act shifted the indicium of maternity from birth to blood DNA testing In 1987 that might only have been a more definite way to identify the person who gave birth in for example the case of mistakes made in hospitals but it had the effect that when science permitted a child to be born where the ovum was provided by one person and the birth by another the 1987 Act meant that maternity was determined by testing and therefore the person who provided the ovum DNA was by that process the person to be registered as mother 34 I regret that I cannot accept this ingenious argument The developments in the United Kingdom legislation are in my view too ambiguous and elusive to assist in establishing unmistakably the meaning of separate Irish legislation No authority was cited for the meaning of the UK Act before or after the Human Fertilisation and Embryology Act 1990 It is in general dangerous to seek to interpret the provisions of an Act by reference to a subsequent amendment without knowing whether that amendment was intended to alter or clarify or simply remove doubt It is obviously even more difficult to use this process to interpret legislation in another jurisdiction If the interpretation of the 1880 Act and the 2004 Act as set out above is correct then by that legislation the mother required to register the birth and be registered as mother is the person giving birth If so then the 1987 Act did not purport to change that understanding or meaning The 1987 Act was instead itself based on the assumption that blood testing could establish at least negatively parenthood which in the case of a woman at the time of passage of the 1987 Act meant the woman who gave birth The assumption that blood testing would even negatively prove birth in all cases may have been falsified by the developments in the science of reproduction but the 1987 Act did not alter the identity of the person to be registered That was and remained the person giving birth 35 I found the submissions by the amici curiae in this case helpful and insightful It is necessary to consider one argument advanced on equality grounds in the course of this appeal This was based largely on the judgment of O Hanlon J in S v S in which it was held that the irrebuttable presumption of fatherhood contained in the rule against giving evidence which would have the effect of rendering a child illegitimate as the law at the time stood was repugnant to the Constitution and accordingly had not survived the coming into force of the Constitution It was argued therefore that any irrebuttable presumption of motherhood or perhaps even statutory provisions which permitted the registration of the birth mother only were also unconstitutional and indeed created an inequality based on gender 36 The argument made had some superficial attraction In my view however it is misplaced for a number of reasons Any equality argument involves the proposition that like should be treated alike Any assertion of inequality involves identifying a comparator or class of comparators which it is asserted are the same or alike but which have been treated differently or unalike In each case it is necessary to focus very clearly on the context in which the comparison is made It is important not simply that a person can be said to be similar or even the same in some respect but they must be the same for the purposes in respect of which the comparison is made A person aged 70 is the same as one aged 20 for the purposes of voting but not of retirement 37 On consideration it seems clear that whatever the superficial similarities there are significant differences between the situation here and that which was dealt with by O Hanlon J First he was considering a common law rule of evidence rather than the interpretation of a statute Second the case did not involve at least directly registration of birth but rather ongoing practicalities of parenting inheritance But perhaps the most significant difference arises from the different gender roles in reproduction and which consequently have particular consequences given the advances in science already discussed In nearly all areas of human activity which come before the courts there is no relevant distinction between male and female However the fundamental distinctions between men and women are rooted in the reproductive function The male paternal role in reproduction is a limited but at least as matters stand indivisible one The only impact of science upon this role has been that methods of testing now allow paternity to be proved almost as a matter of certainty rather than something which could be uncertain It is obvious however that the female role in reproduction goes far beyond the provision of an ovum containing DNA Again as the science currently stands it also involves implantation of the fertilised ovum gestation and ultimately birth Critically for present purposes the advance of science now means that that function is not necessarily carried out by the same person Once DNA testing became available it became possible to identify the one and only one person who was the father Positive identification of the father also rules out any other male person as involved in the reproductive process It was obviously unfair to insist that in every case a husband was to be treated as the father even when that could be disproved By contrast the female role in reproduction is not only different and more complex it is also now divisible DNA testing does not permit any more the identification of the single female person involved in the reproductive process from conception to birth and the exclusion of any other person For the purposes of registration a choice must be made between two persons who each fulfil part of the function traditionally performed by a mother It is not self evidently contrary to any constitutional scheme to require the registration of the birth mother as mother at least initially especially when to do so maintains consistency with all other births and indeed other birth registration systems 38 It should be apparent however that this conclusion is dependent upon the essentially narrow focus of this case It is in my judgment permissible to have a birth registration system registering the birth mother initially That is what the 2004 Act does But that only illustrates the fact that serious constitutional issues must necessarily arise if that position is maintained for all time and for all purposes From a human point of view it is completely wrong that a system having failed to regulate in any way the process of assisted reproduction and which accordingly permits children to be born nevertheless fails to provide any system which acknowledges the existence of a genetic mother not merely for the purpose of registration but also in the realities of life including not just important financial issues such as inheritance and taxation but also the many important details of family and personal life which the Constitution recognises as vital to the human person Very different issues would arise in such circumstances In my view however on the narrow question of registration on birth raised in this case the first named respondent is correct that the 2004 Act on true construction requires the registration of the birth mother and in doing so is not unconstitutional I wish to make it as clear as is possible that this decision is limited to the question of immediate registration of birth it should not be taken as deciding anything more THE SUPREME COURT Appeal No 263 2013 Denham C J Murray J Hardiman J O Donnell J McKechnie J Clarke J MacMenamin J 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 M R and D R Children Between M R and D R suing by their father and next friend O R and O R and C R Applicants Respondents and An t Árd Chláraitheoir Ireland and the Attorney General Respondents Appellants and L L Notice Party and The Equality Authority and the Human Rights Commission Amici Curiae Judgment of O Donnell J delivered the 7th of November 2014 1 This case involves a couple the third and fourth named applicants who are married and who wished to have children The fourth named applicant was diagnosed with a syndrome called MRKH when she was eighteen years old As a result of this condition she does not have a uterus and therefore cannot carry a pregnancy She does have fully functioning ovaries and is able to produce ova Accordingly the third and fourth named applicants investigated the possibility of surrogacy arrangements During this process of investigation the fourth named applicant s sister the notice party agreed to act as a surrogate and ultimately all relevant steps in this case occurred in this jurisdiction through the medium of a private clinic providing fertility treatment The fourth named applicant and her sister underwent the hormone treatment involved in in vitro fertilisation IVF The fourth named applicant had to take medication to stimulate her ova for retrieval and her sister had to undergo treatment to prepare her body for pregnancy Ova from the fourth named applicant were fertilised by sperm from the third named applicant and implanted in the uterus of the notice party The first attempt at implantation was unsuccessful but a second attempt in March 2008 resulted in pregnancy The notice party gave birth to twins the first and second named applicants who were taken home and cared for by the third and fourth named applicants as their family On the birth of the twins the third and fourth named applicants and the notice party sought to have the fourth named applicant registered as the mother of the twins the third named applicant being registered without difficulty as the father because fatherhood can be acknowledged However the first named respondent appellant the Chief Registrar for Births Marriages and Deaths refused on the basis that the registration system was obliged to register the woman who had given birth as the mother of the children born Accordingly the notice party was registered under protest as the mother on the birth certificates and an application was brought to correct the register Again this was refused by the first named respondent appellant and these proceedings were commenced seeking a declaration that the fourth named applicant is the mother of the twins and accordingly entitled to be registered as their mother 2 For ease of identification and reference and without attributing any legal significance thereto and indeed without intending any offence I will in the course of this judgment hereinafter refer to the fourth named applicant as the genetic mother or commissioning mother and to the notice party as the birth mother or surrogate mother The legal issue in this case arises because developments in science mean that it is now possible that the female role in conception pregnancy and childbirth which for women fortunate enough not to face reproductive problems is a single process can now be separated and performed by two or more persons in this case the genetic mother and the birth mother 3 While this case is focussed upon a difficult question of the law of registration of births an area which rarely comes before these courts it clearly touches upon important and fascinating questions of ethics science and law A court must address and decide issues properly coming before it for adjudication But for reasons which I will address later in this judgment it is also important that the Court focus upon and determine only those issues which are necessary to be determined It is I think useful therefore to remind ourselves at the outset that this case does not raise any question of the enforceability or validity of a surrogacy agreement or the recognition or enforcement here of surrogacy agreements performed in jurisdictions with legislative codes which permit such agreements Nor does it involve any dispute between a commissioning parent and a surrogate mother and equally clearly it does not involve the question of the constitutional validity of any legislation regulating or even prohibiting surrogacy agreements Each of these situations involves complex legal issues which must be addressed and determined if and when they arise in the context of facts which may define and illuminate the issue to be determined But they do not arise here What this case does involve is a narrow but important point of the law of registration who is to be registered by the first named respondent appellant as the mother of the first and second named applicants The Court has received written and oral submissions from the parties the notice party and the amici and I have found them very useful in a broad sense in understanding the background and nuances against which this issue must be determined However the issue is and remains a narrow one under the Irish law of registration who is entitled to be registered as the mother of the applicant children Before addressing that question it is desirable to make some general observations to set the context in which the legal issue raised in this case is to be determined 4 First the issue raised in this case arises because of at least two extraordinary but unconnected advances in science which occurred in the late 20th century The discovery by Crick and Watson in 1953 of the structure of DNA as a double helix was an extraordinary scientific achievement but it was many years before it was possible through further advances to develop practical applications of this discovery The discovery of DNA while important in a therapeutic context has also had a significant impact in the field of testing and in particular criminal investigation Until relatively late in the 20th century blood testing was essentially negative it was possible in some cases to exclude any connection but not to positively establish connection However the realisation that an individual s DNA is essentially formed at the point of conception and by the provision of DNA from the male and female meant that it was in theory possible to establish identity and also parental filial and family connections with a high degree of certainty Significant as this science was in the field of criminal investigation its impact on the law of domestic relations might have been relatively marginal The irresponsible seducer of the Victorian melodrama might no longer be able to gamble on denying parentage and the possibility of hospital confusions and mix ups at birth might have been reduced but without the advances in assisted reproduction made in the 1970s the development of the science of DNA would only have led to a more efficient testing regime to identify persons whose role and status had been understood for millennia the male father and the female mother On its own the discovery of DNA did not alter those roles By contrast the science involved in the first successful birth as a result of in IVF developed by Edwards and Steptoe in 1978 was itself relatively simple albeit discovered after years of frustrating research and its impact was immediate and enormous It has been estimated that in the two decades that followed the first successful IVF pregnancies 40 000 pregnancies were generated using the technique and it must be presumed for parents struggling with the pain of infertility and who only a few years earlier would in all probability have been childless The issue arising in this case flows directly from those two remarkable achievements of science in the late 20th century 5 Second despite the advances in the field of assisted reproduction the enormous impact of these advances on the most intimate parts of human lives and the fact that assisted reproduction has been provided on a private basis in Ireland for some time now this is an area which is devoid of legislative guidance The absence of legislation does not mean an absence of assisted reproduction rather it means an absence of regulation Generations of children have now been born in Ireland through assisted reproduction into a legal half world where the only constraints on the process are those imposed by the dictates of a private market and the sense of responsibility of practitioners Furthermore Irish society in general has not addressed the important issues that arise in the field of assisted reproduction In this regard surrogacy arrangements pose particular problems It might be recalled that the 1984 Warnock Report in the UK Report of the Committee of Inquiry into Human Fertilisation and Embryology into the field of assisted reproduction which recommended regulation of the field also recommended against permitting surrogacy arrangements saying it is inconsistent with human dignity that a woman should use her uterus for financial profit and treat it as an incubator for someone else s child p 45 see the admirable discussion in Madden Medicine Ethics and the Law Dublin Butterworths Professional 2011 2nd ed In addition to those who have ethical or moral objections to the process there are also those who oppose it because of concerns about the commercialisation and commodification of women s reproductive organs Even the limited survey of the position in different states in the world and particularly in Europe shows that there are many different possible approaches which require to be considered Should surrogacy be permitted at all If it is to be permitted are there any restrictions such as age or marital status on the person seeking it or on the person acting as a surrogate Should it be available only to those with reproductive difficulties or should it be available to anyone who seeks it for reasons of lifestyle or convenience Can payment be made to a surrogate for services rendered If so is there a limit If it is not permissible to pay the surrogate mother is it possible to make payments to a clinic providing the technical assistance and if so is there any limit on such payments What is the status of any agreement between the parties What is to occur if there is a disagreement during the course of the pregnancy arising perhaps from the death of one of the commissioning parents a separation or divorce a change of mind on the part of the surrogate or perhaps the detection of significant abnormalities These are only some of the questions which arise and must be addressed Alongside each of them is a further difficult legal question in the event that some regulations are imposed on surrogacy arrangements what is the position when as inevitably will happen children are born where those regulations have been breached If for example the consequence is that the surrogacy arrangement cannot be recognised or given effect and the children do not become members of the family of the commissioning parents then they will through no fault of their own exist in something of a new legal limbo On the other hand if notwithstanding breach of some or all of the regulations the surrogacy agreement is enforced and the children become members of the commissioning parent s parents family then the system of regulation may become irrelevant 6 These are not easy questions However and without attributing blame it is surely wrong that Irish society has not had the opportunity to address these questions and express its views ultimately though the people s representatives in the legislature It is also a cause for regret that The Irish Council for Bioethics no longer functions In a field of rapidly changing science strong beliefs and stronger emotions neutral information thoughtful reflection and interaction between disciplines is invaluable The absence of legislative guidance is also surely wrong from the perspective of couples struggling with the pain of infertility and the considerable stresses of fertility treatment They should not be required to become a vociferous pressure group to achieve more general regulation most of all when the issue involves an intimate matter which few couples would wish to publicise particularly if it means exposing their children to the possibility of ill informed comment and worse Finally however it is surely most clearly and profoundly wrong from the point of children born through an unregulated process into a world where their status may be determined by happenstance and where simple events such as registration for schools attendance at a doctor consent to medical treatment acquisition of a passport and even joining sports teams may involve complications embarrassment and the necessity for prior consultation with lawyers resulting in necessarily inconclusive advice This Court in clear and forceful terms drew attention to the absence of regulation in its decision in Roche v Roche 2010 2 I R 321 The need for legislation is even more urgent today 7 Third the absence of legislative action means that citizens will inevitably seek a resolution of their problems through litigation Courts cannot abstain from determining a legal issue which is properly before a court and which requires to be decided But this does not mean that the Court can provide a legislative scheme whether detailed or simple Instead a decision on a constitutional matter can be a frustratingly binary choice between upholding legislation or striking it down and leaving a gap which it is for the other constitutional organs to fill In some cases the consequence of a decision on constitutionality may even limit the options for legislation In the case of statutory interpretation a court s function will be to declare what the law is rather than what it ought to be Any such declaration of the law will however inevitably affect other cases Thus in this case for example the issue might be said to be whether under the Civil Registration Act 2004 the genetic mother or the birth mother is to be registered on the birth certificates The choice of one excludes the other and will apply to all cases 8 Fourth it may seem strange at one level that this case which touches on so many important ethical and philosophical issues should focus on an issue of registration The registration of births marriages and deaths is an important but largely colourless process necessary in any developed society Like the census it reflects the Victorian urge to systematise organise and record As such it might be said to be an unlikely subject for contention If for example a birth certificate is no more than a snapshot in time albeit an important one and a recording of a fact then it might reasonably be questioned what difference it makes if the fact of birth is recorded However the certification process is a method by which the law determines certain status Sir Henry Maine observed that the development of the law had been a development from status to contract But that observation true in many areas of the law only emphasises the significance of those areas where status remains important for example citizenship birth parentage death and marital status including not just whether a person is single married or divorced but also the definition of those persons who may achieve that status To a degree the law and society assumes that status follows from or is at least established by registration and certification Important legal consequences may follow from the achievement or termination of a particular status not least in relation to inheritance Certification while often routine is therefore important It is significant for example that where the Status of Children Act 1987 the 1987 Act or the Act of 1987 contemplates a process for the declaration of parentage by a court it provides for consequential registration or re registration of birth and the issuance of a new certificate 9 Fifth and finally it is important to observe that the facts of this case are somewhat unusual It is we were told a much more common female infertility problem that a woman would require the donation of ova rather than as here where a woman might be in a position to produce an ovum but not be capable of carrying a pregnancy At least one formulation of the applicants case involves an invitation to this Court to update the law or to make a choice between competing definitions of mother It is a relevant consequence that such a declaration would apply generally and to all situations so that previously registered mothers and fathers could lose that status and anonymous donors of sperm and ova could become entitled to declarations of parentage and registration It might be said that this is a possibility more theoretical than real and that the current system allows commissioning parents in that situation a facility denied to the parents in this case of having their parentage registered in the case of a woman by birth and in the case of a father by acknowledgement and in neither case are they obliged to bring the arrangements to the attention of the

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  • Mrs R s condition which meant that she could not in a complete sense conceive carry the child or give birth to it Without a uterus that element of the process was denied to her However she has otherwise contributed to the fullest extent possible namely in being the sole provider on the maternal side of the genetic input into the creation of her children She has thus done everything which the most up to date and available treatment permits her to do in the reproductive process 138 As one has moved into indeed as one is now firmly entrenched within a new medical and scientific world a world affecting in a most profound way those who engage with it it becomes necessary to recognise and respond to the highly significant and complex moral social ethical and legal issues which arise impacting as they do not only on such persons but also on society as a whole and in a way which questions its historical traditional and cultural views and values This new scientific and medical world is certainly timeless if not limitless 139 Like all such profound innovations however the productive utility of IVF must be consistent with and accommodate the common good Regulation would appear to be the obvious answer not only to cover matters resulting from new discoveries and the propriety of treatment and its use but also to deal with the consequences which follow both from its successes and failures There already exists a most extensive report from the Commission on Assisted Human Reproduction which is now almost a decade old As if the complexities of this situation needed any demonstration it can immediately be seen from just one recommendation of the majority how difficult this area is the recommendation was to the effect that the child born through surrogacy should be presumed to be that of the commissioning couple whereas in the United Kingdom by force of statutory provision the opposite view is helpful Whatever its contours might be such regulation would at least create a legal framework and bring about some degree of certainty by reference to which those involved with the process could ascertain their position 140 The arrangement put in place by the parties and their individual participation in it is not unlawful either by virtue of the civil or criminal law in this jurisdiction On first principles therefore one can thus say that it is lawful on the basis of what is not prohibited by the law is permitted by the law That however begs a serious question which is whether if one party sought to enforce its terms would the court decline to so do either on public policy grounds or otherwise That issue does not call for resolution in this case as neither party as such seeks to legally validate the agreement Incidentally however the tentative view to date is inclined towards non recognition 141 The agreement however is not devoid of importance irrespective of whatever legal status it might have It is quite clear that in a spirit of full cooperation knowledge and consent the parties in this case committed themselves to regulate each aspect of the arrangement and the consequences which would follow a successful outcome both as to matters of fact and if the law permitted as to matters of law It is at least therefore indicative of the views of each party which they individually declared at the outset and which they have faithfully implemented to date By mutuality of accord Mrs R was to be accredited with the status of mother to the exclusion of the notice party who also renounced any and all rights to the children howsoever arising In addition Mrs R and her husband were to be and were to act exclusively as the parents of the children Moreover the consequences in respect of the children which would follow from that status if legally recognised were put in place The husband of the notice party has confirmed by statutory declaration that he is not the father of the children Therefore no complications arise in that regard In an area otherwise unregulated by law it is difficult to see what more the commissioning parents could have done if Mrs R and her husband were ever to have a chance of becoming what they would regard as natural parents even if partly dependent on IVF for that purpose 142 Historically where the natural reproductive process was involved it might be fitting to ask the question who is one s mother However even then to meaningfully engage with the question there must be a context The answer might be quite different if the inquiry was framed in such a way as to focus on the person who had provided the essentials of the common meaning of the phrase motherhood Likewise with regard to the questions who is one s father or who has looked after the child like a father should 143 In this era of assisted human reproduction there are several feasible answers to these questions In the recent case of In Re G Children 2006 1 W L R 2305 which has previously been mentioned Baroness Hale ventured the following discussion on these topics At p 2316 of the report it is stated 33 There are at least three ways in which a person may be or become a natural parent of a child each of which may be a very significant factor in the child s welfare depending upon the circumstances of the particular case The first is genetic parenthood the provision of the gametes which produce the child This can be of deep significance on many levels For the parent perhaps particularly for a father the knowledge that this is his child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child see for example the psychiatric evidence in In re C MA An Infant 1966 I WLR 646 For the child he reaps the benefit not only of that love and commitment but also of knowing his own origins and lineage which is an important component in finding an individual sense of self as one grows up The knowledge of that genetic link may also be an important although certainly not an essential component in the love and commitment felt by the wider family perhaps especially grandparents from which the child has so much to gain 34 The second is gestational parenthood the conceiving and bearing of the child The mother who bears the child is legally the child s mother whereas the mother who provided the eggs is not the 1990Act section 27 While this may be partly for reasons of certainty and convenience it also recognises a deeper truth that the process of carrying a child and giving him birth which may well be followed by breast feeding for some months brings with it in the vast majority of cases a very special relationship between mother and child a relationship which is different from any other 35 The third is social and psychological parenthood the relationship which develops through the child demanding and the parent providing for the child s needs initially at the most basic level of feeding nurturing comforting and loving and later at the more sophisticated level of guiding socialising educating and protecting The phrase psychological parent gained most currency from the influential work of Goldstein Freud Solnit Beyond the Best Interests of the Child 1973 who defined it thus A psychological parent is one who on a continuous day to day basis through interaction companionship interplay and mutuality fulfils the child s psychological needs for a parent as well as the child s physical needs The psychological parent may be a biological adoptive foster or common law parent 36 Of course in the great majority of cases the natural mother combines all three She is the genetic gestational and psychological parent Her contribution to the welfare of the child is unique The natural father combines genetic and psychological parenthood His contribution is also unique In these days when more parents share the tasks of child rearing and breadwinning his contribution is often much close to that of the mother than it used to be but there are still families which divide their tasks on more traditional lines in which case his contribution will be different and its importance will often increase with the age of the child I respectfully agree and could add several other candidates who would fit comfortably into the social and psychological role 144 In considering the constitutional issue it is in my view of the first importance to avoid if at all possible a generalised discussion of the problems which are capable of arising from the use of assistance in the reproductive process In an area totally unchartered which involves a diversity of inter related matters some of which may simply have to yield to others it is preferable in my opinion to take a narrow approach and concentrate on the facts of this case There is another reason for this which becomes evident when I suggest how this judgment should be responded to para 153 infra 145 What is essential therefore to ask is whether against the background of her condition the medical and scientific evidence given in the High Court and the judge s finding of fact thereon the deliberate and decisive decision of Mrs R and her husband to avail of this treatment her genetic contribution to fertilisation to the structure giving rise to the placenta and to the inheritable characteristics which the children inherit from her should this Court recognise the existence of rights at a constitutional level arising out of such relationship between Mrs R and her children between the children and Mrs R and between both parents and the children 146 The answer from Mrs R s point of view is not easily arrived at If she was the only contributor on the female side the position would be quite straightforward even if unmarried Searching for a solution by analogy with the law as it applies to paternal actors is apt to confuse rather than to elucidate The situation of the male who contributes in natural form whether married to the child s mother or not is again well declared in the case law Where he is a donor by artificial means his position and that of the child depends on whether he is or is not married to the child s mother Even the case of In Re G Children is of no direct assistance as in that case the biological mother was also the gestational mother So whilst the blood link has featured albeit to different degrees in these cases none of them have a context quite like that of the instant case Therefore in my view I think that the constitutional issue must be addressed at the level of principle 147 For the purpose of this discussion I am disregarding for the moment the rearing nurturing and upbringing role played by Mr and Mrs R in respect of the children I am simply referring to Mrs R s part in the procreative process The choice of IVF was forced upon her by abnormality which in itself potentially raises serious issues of equality under Article 40 1 The decision to engage as stated was pre planned and deliberate in the full knowledge of what was involved and what the hoped for consequences might be She provided the ovum which when matched and thereafter fertilised with the sperm of her husband gave rise to the pregnancy That process could never have been initiated without her contribution There would have been no zygote and no embryo without her She participated in every way that was possible for her and to the full extent of her capacity Her involvement could not have been more 148 Of course it is true also to say that the notice party played a major role in the growth and development of the embryo to the point of producing live and healthy children That is a contribution which I am not overlooking and in my view is one which cannot be overlooked In concentrating on Mrs R I am not to be taken as suggesting that the surrogate s role was insubstantial or insignificant far from it As one of the medical witnesses said the gestational environmental is beyond essential in this particular process But on the facts of this case any rights which she may have do not fall for consideration In some future case these may undoubtedly arise but not so in this one Her role is one which should be acknowledged and that I do 149 The question of intention evidenced by such multiple acts of deliberation on the part of Mr and Mrs R is a significant factor in whether their situation is capable of constitutional recognition In my view it is 150 The relationship of Mrs R and the children and the children s relationship with Mrs R in the context of the reproductive process involved in their conception is justly deserving of recognition at constitutional level From her point of view she is the sole provider of the genetic material on the maternal side That contribution is singular in its significance it is what gives rise to our very being it is the basis of who we are it directs our individual uniqueness and is indestructibly engrained in our characteristics and those which we pass on to our offspring by procreation The High Court in my view was perfectly justified on the evidence in reaching the conclusion which I have paraphrased elsewhere in this judgment namely That chromosomal DNA material has a deterministic influence on the uniqueness of the embryo which carries into the inheritable characteristics upon which our individual sense of self and identity is based Such an input into creation is so integral that it must command constitutional protection Likewise from the standpoint of the children The relationship thus created flows in both directions Therefore I am satisfied that rights at the highest level of our legal order are in place in the circumstances as outlined This means that the natural and human association between mother and child and child and mother must be recognised in law in a way that reflects the fundamental reality of the situation 151 Logically at this juncture of the discussion one might expect that the judgment would enter into a discourse of finer detail regarding the rights of the respondents individually and as a group and where such rights should be constitutionally positioned Consistent with the self imposed restraint which I have advocated above and for the reasons therein outlined para 144 supra I do not propose to follow that course but I reserve the right to do so if called upon to further consider this issue I am satisfied to limit myself by saying that such rights are to be found in Article 40 1 and Article 40 3 of the Constitution They may well be justified also by reference to other provisions but I do not consider it necessary to further explore this issue at the present time If occasion should arise I will as stated do so in the future 152 The question then remains as to whether the State has complied with its constitutional obligations as above referred to In my view it has not Mrs R may not even have the right to apply for guardianship which even an unmarried father has and which in any event even if she has would not be an adequate vindication of her rights To suggest that the potential availability of adoption might satisfy this duty is unacceptable As worthy in all as adoption is making an enormous contribution to individuals families and society alike it does not meet the constitutional requirements in this case Neither does the fact that Mr R could undoubtedly apply for guardianship Whether the court could in those circumstances appoint Mrs R as joint guardian is perhaps an issue of some complication which I will leave aside One way or the other I am satisfied that there is a right at constitutional level arising from the circumstances of this case which the State in the discharge of its duty under Article 40 must recognise and thereby vindicate 153 In arriving at this conclusion I am acutely conscious that the duty of recognising and vindicating rights falls on all branches of government with the ultimate custodian of this responsibility being the judiciary In an area so complex and diverse as assisted human reproduction which involves detailed matters of policy it is in my view appropriate that an opportunity should be given to the legislative branch in the first instance to decide in which way such rights should be recognised and vindicated However in the event of a failure to do so recourse may be had to the courts for this purpose 154 Finally in several respects I find the outcome of this judgment unsatisfactory in particular regarding the children As the law is presently understood in this area the children prior to the 1987 Act may well be considered illegitimate That is a most undesirable consequence of the circumstances in which the legal situation rests as of now Furthermore even with the abolition of illegitimacy it is by no means certain that the children together with Mr R and Mrs R constitute a family under the Constitution If that be correct which I am not called upon to definitively say then the protection afforded by virtue of Articles 41 and 42 thereof is denied to them This would be a highly undesirable state of affairs which results from a situation where scientific and medical advances have far outpaced the use of existing legal practices and mechanisms A comprehensive response is urgently required which response at the level required is not possible from a judicial point of view Intervention therefore by the Oireachtas is essential 155 For the above reasons I will allow the appeal but would make a declaration that Mrs R and the children have rights which must be recognised and vindicated under Article 40 of the Constitution in such a way which reflects the fundamental relationship between them THE SUPREME COURT Appeal No 263 2013 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 AND 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 AND THE EQUALITY AUTHORITY AND THE HUMAN RIGHTS COMMISSION AMICI CURIAE JUDGMENT of Mr Justice William M McKechnie delivered on the 7th day of November 2014 Introduction 1 At age eighteen Mrs R discovered that she was born without a uterus but that her ovaries were healthy and intact After her marriage to Mr R the couple began to investigate what possibilities existed by which they might have children and become parents When in vitro fertilisation IVF and other forms of assistance in human reproduction were being discussed the notice party Mrs R s sister who by then had been separated from her husband by formal decree of judicial separation and with whom she had during their marriage two children offered to act as a surrogate The intended process was that Mrs R would produce an ovum which when fertilised by her husband s sperm in vitro would be implanted into the uterus of the notice party Thereafter the embryo would grow and develop in the gestational environment provided by the surrogate thereby leading it was hoped to the birth of a child This is in fact what happened but with the good fortune that twins resulted both being born on the 13th day of September 2008 Immediately after birth when well enough to do so the newborn children went home with Mr and Mrs R who have cared for them in what they consider as their family unit ever since The role of the surrogate who participated in the process solely for the joy of seeing her sister and her brother in law have children was always intended to be and remains that of a loving aunt In common parlance therefore Mrs R can be described as the genetic mother the notice party as the birth mother or the gestational mother with Mr R as the father 2 As advised or as may have been demanded by the fertility clinic involved in the process the parties signed what was headed and described as a Surrogacy Agreement This was dated the 19th of November 2007 with Mr and Mrs R being referred to as the Commissioning Father and the Commissioning Mother respectively and collectively as the Commissioning Couple and the notice party as the Embryo Carrier Whilst further reference will be made to this agreement later in the judgment it is sufficient to say at this point that the essence of its terms required the surrogate to relinquish physical custody of any child to the Commissioning Couple as soon as practicable following birth who thereon were to become guardians and legal parents of such child In furtherance of this arrangement the notice party also agreed to renounce any and all rights to custody guardianship and access and further to waive any and all other paternal rights howsoever arising 3 Every step of the process which included the following 1 the provision of the ovum and sperm 2 the manner or method of fertilisation 3 the implantation of the embryo into the womb of the notice party 4 the carrying of the embryo through the gestational period to the birth of the children 5 the intention that Mr and Mrs R would take the children home with them upon birth and would thereafter have to the exclusion of the notice party sole custody of and responsibility for their upbringing and welfare and 6 the role of the surrogate in her future relationship with the children her sister and with Mr R were all agreed to in advance and were when the occasion demanded implemented in a fully consensual manner 4 In almost every respect therefore this must be regarded as one of the least complicated and most straightforward surrogacy arrangements that could exist The identity of the donors two only in number was known at all times and as stated were and are married to each other as a heterosexual couple thus they constitute a family under Irish constitutional law The involvement of the surrogate a sister of Mrs R was purely altruistic in nature although she remained married at the time she had been formally separated from her husband for a period well in excess of ten months pre birth In addition he the husband has confirmed in a statutory declaration that he is not the father of the children The roles of all parties after birth had been specified as had the legal consequences of the arrangement subject of course to the law recognising the legal validity of the agreement entered into No issue arises regarding the welfare of the children Each essential step of the process took place within this jurisdiction where also all of the parties are domiciled and permanently resident therefore every aspect of what occurred is governed purely by domestic law Finally such arrangement has been and remains wholly consensual In all it was a community of interests 5 Consequently none of the difficulties which can arise do so in this case such difficulties are numerous some foreseeable but many others not and when present should not be underestimated See Legal Problems with International Surrogacy Arrangements Michael Nicholls Q C for a useful summary in this regard And yet of course even in this most accommodating situation the case gives rise to seriously complicated issues of a social ethical moral philosophical and legal nature Mercifully for me my analysis is essentially approached solely from the point of view of legal principle 6 As required by law particulars of the births were furnished to an tArd Chláraitheoir the first named respondent these showed Mr R as the father and the notice party as the mother Such particulars given on the female side were without prejudice to the views of all concerned in the arrangement that Mrs R and not the surrogate should be registered as the childrens mother An application to that end was made on the 14th September 2010 It was claimed that the entry recorded on the 19th October 2008 was erroneous in fact and should be corrected under s 63 of the Civil Registration Act 2004 the 2004 Act in support of such application evidence was tendered which established that Mrs R was the sole donor on the maternal side of the genetic material which together with that of her husband undoubtedly gave rise to the birth of these children This fact has never been in dispute on the contrary it has always been so accepted by the Registration Authority On receipt of this application an tArd Chláraitheoir obtained legal advice as to how the request should be dealt with He was informed by senior counsel that the rule mater semper certa est or mater semper applied and therefore the only person which the law could recognise as the mother was the notice party being the birth mother Consequently on the 14th June 2011 he rejected the application to alter the name of the mother on the register of births Such decision was the immediate cause of the institution of these proceedings which were moved by way of a statutory appeal under s 60 8 of the 2004 Act Reliefs sought 7 In the points of claim which for the following purposes can be regarded as having superseded the special summons the applicants those firstly named being the children followed by Mr and Mrs R sought a number of reliefs which included the following declarations 1 that Mrs R was the mother of the children and thus should be so declared pursuant to the Status of Children Act 1987 the 1987 Act 2 that the refusal to recognise and acknowledge Mr and Mrs R as the parents of the children was unlawful as it failed to vindicate and protect the constitutional rights of the applicants as a group in particular their rights pursuant to the provisions of Articles 34 40 4 1o sic 40 3 2o and 41 of the Constitution and 3 that Mrs R was entitled to be registered as mother of the children and the register should be corrected to reflect this fact As an alternative to such declarations an order was also sought under s 6A of the Guardianship of Infants Act 1964 the 1964 Act or pursuant to the inherent jurisdiction of the court appointing both Mr and Mrs R as guardians of the children 8 The respondents appellants in objecting to any relief being granted denied that in refusing to recognise Mrs R as the mother the State had acted in violation of any constitutional rights of the applicants either individually or collectively They also asserted the ongoing supremacy of the mater semper rule by which it was claimed that the birth mother and no other was the legal mother of the children The notice party and both the Equality Authority and the Human Rights Commission who with the court s permission made helpful submissions supported the position of the applicants for various reasons The Medical and Scientific Evidence 9 A fair representation of the medical and scientific evidence given in the High Court can be summarised in this way 1 An ovum is fertilised by sperm giving rise to a genetic construction comprised of 46 chromosomes forming a Genome from which each individual person is defined by way of DNA The Genome is the code of our life and y ou cannot have life without DNA and it controls ultimately controls everything The Genome i e gene sequence is complete on fertilization It does not change save for mutational processes which are untypical or as a result of genetic defects The growth and development of a person is as a result of genetics the environment and the interaction between genetics and the environment However the uniqueness of each individual person is as a result of the recombination of the DNA of the donor i e the 23 chromosomes of the male and the 23 chromosomes of the female which occurs prior to the fertilisation of the ovum by the sperm Each unique individual human being is formed at the point of the zygote i e the fertilised ovum In the context of the surrogacy arrangement in this case the fertilised ovum developed into an embryo before implantation Upon implantation the embryo attaches itself to the wall of the uterus and the cells of the embryo create the placenta which provides for the blood flow and vital constituents therein as between the Gestational Mother and foetus The architecture that the Gestational Mother provides through the womb is critical to pregnancy The placenta is the anchor to this architecture It is the Genome or genetic structure that is the catalyst for the development of the placenta Thereafter the Gestational Mother does have an influence on placental function and the intrauterine environment informs almost every outcome of the pregnancy However ultimately the placenta is a structure that originates from the Genetic Mother and not the Gestational Mother in that the DNA of the placenta is almost always that of the baby 2 Epigenetics is the phenomenon whereby the surrounding environment can control the availability of genes to be converted into proteins by influencing genes to react or not to their surrounding environment However the Genome determines how susceptible one is to the influence of epigenetics Epigenetics do not change the Genome or core DNA genetic structure During the period of gestation it is the Gestational Mother who creates the environment within which the epigenetics seek to influence the embryo A Gestational Mother may potentially influence the development of a child through epigenetics Regardless of the identity of the Gestational Mother the Genome or genetic make up of a child will not change At a genetic level the extent of epigenetics is one of influence not change It influences the Genome in terms of genes reacting or not in a particular manner Such influences may be carried through to future generations However epigenetic influences during the gestation period are reversible and can be reversed after birth Although there are some epigenetic effects that are not reversible Epigenetic influences are not deterministic or causative but rather are correlative In that regard DNA isn t changed by environmental and DNA sequence isn t changed by environment influence but DNA itself can alter expression up or down or the form of the expressed value 3 Epigenetics is not a concept applicable solely to the gestational period or as a consequence solely within the provenance of the Gestational Mother but rather Epigenetics can operate after birth Whilst the influence of epigenetics may be strong and have dramatic affects on the expression of genes that influence is not confined to the gestational period but also the postnatal period 4 The contribution that a Gestational Mother may have to an embryo by way of epigenetics is secondary to the contribution of the Genetic Mother as any epigenetic influence is secondary to the Genome which in turn dictates how susceptible an embryo may be to the influence of epigenetics Further the DNA structure is not altered itself by epigenetics DNA sequence is not altered by the environment whereas epigenetics is altered Epigenetic sequences themselves let s say if we want to call that its own sequence can be altered 5 Microchimerism is the presence of cells within a person which are not of that person During pregnancy cells can transfer through the placenta from the Gestational Mother to the unborn eliciting immune responses which contribute towards the development of the unborn s immune system This has no effect on the core DNA of the unborn i e the Genome Further the sole source of an unborn s ability to respond to antigens substance that stimulates the production of antibodies as transferred is the unborn s core DNA structure Further the number of such cells that transfer by way of microchimerism is very very very very small and highly rare and almost insignificant 6 In response to a question on the prerequisites of motherhood Prof Green stated There are the traditional prerequisites first of all which is genetics in the sense that a child would have inherited genes from both its genetic mother and its genetic father In most circumstances that carries all the way through So the person whose eggs are used to make the child will also be the person who carries and it will also be the person who raises and nurtures that child and would be their mother in every sense But there are other aspects to motherhood There are foster mothers there are adoptive mothers neither of whom necessarily has any genetic connection to the child they raise And obviously there are also gestational mothers The term mother is used in all of those and I wouldn t change that underline added 7 Both Prof Green and Dr Wingfield witnesses for the State were members of the Commission on Assisted Human Reproduction that produced a report in 2005 Both were members of the majority in terms of the recommendations made including recommendation 33 The child born through surrogacy should be presumed to be that of the commissioning couple This remains the view of Prof Green The reasons supporting the recommendation were that a major contribution to a child s who they are is their genetic parentage and also the intent on the part of the commissioning parents Therefore where a genetic connection to the commissioning couple co exists with an intention on their part to conceive a child parentage should be presumed to rest with the commissioning couple Such a conclusion was reached notwithstanding recognition of the importance of gestation in the bringing of a child into existence From the perspective of Dr Wingfield providing evidence as a scientist on the issue she stated I would feel and I think most people would feel the parentage should lie with the commissioning couple In expressing this view Dr Wingfield similar to Prof Green relied on the genetic connection between the commissioning parents and the child and the intent of the genetic parents In addition to Professor Green and Dr Wingfield the above summary also includes the views where relevant of Dr Cliona Molony and Dr Fionnuala Breathnach Ex Submissions of Notice Party The High Court Judgment 10 Arising out of the evidence given the High Court made an important finding of fact It did so by recalling the views of the scientific witnesses who explained that up to the time of the publication of the Report of the Commission on Assisted Human Reproduction in April 2005 the science of genetics as exemplified by a straightforward deterministic view of the influence of chromosomal DNA material in relation to the determination of the identity and development of the foetus and baby prevailed but that thereafter the impact of epigenetics also had to be considered Having reviewed such evidence the learned High Court Judge for the reasons set out at para

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  • be exploited in the context of surrogacy arrangements but also in bringing certainty to issues relating to the personal status of individuals born as a result of such arrangements 8 7 But the problem with which this Court is now faced is that no such legislation has as yet been enacted The question which needs to be addressed is as to whether the Constitution can be said to require that the existing legal status of persons in the position of the twins in this case requires to be determined in any particular way Put simply in the absence of legislation specifically dealing with the matter the current status of the twins must be considered by reference to the common law definition of mother to any relevant statutes which might impact on that position and to any requirements which the Constitution might mandate I have already indicated that in my view the common law position was one which did not distinguish between a genetic mother and a birth mother I have also indicated my view that neither the 1987 Act nor the 2004 Act altered that position I cannot see that the Constitution requires that that position be altered either The Constitution permits the State to regulate It may well be that the State will choose to regulate in such a way as will cause in some cases a birth mother to be regarded as a mother and in other cases a genetic mother to be regarded as a mother Within constitutional bounds it is largely a question of policy for the Oireachtas to determine the precise parameters of any such regulation 8 8 There is no doubt that the idea that two persons may in different ways be regarded as the mother of a child is counter intuitive But so also is not regarding the person who gives birth to a child as being its mother and equally in not so regarding the person who has given the female half of the genetic material which underlies such a child s makeup Advances in reproductive science have led to a situation where in the absence of legislation whatever the law determines as the meaning of mother will to an extent be counter intuitive in some cases It may well be that the proper answer to the question as to who should be recognised as a mother in the often complex situations which can arise in this field is it depends However that begs the next question On what does it depend That involves many policy choices which are primarily a matter for the Oireachtas and not unless they break the limits of what is constitutionally permissible the courts 8 9 I have reached those conclusions on the lack of a constitutional effect on the issues which arise in this case only because I have concluded that the law in the absence of legislative amendment regards both a birth mother and a genetic mother as mothers or at least as having some of the legal characteristics of a mother If I had come to a different conclusion on that point then there might well have been significant constitutional issues To what extent would it be legitimate for example in current scientific conditions for a definition of mother to potentially deprive a child or children of the status of forming part of a constitutionally protected family including their father To what extent would it be constitutionally permissible on the other hand to deprive a birth mother of any potential recognition as a mother These and doubtless other constitutional issues will need to be considered in the difficult and delicate balancing exercise in which the Oireachtas will have to engage before finalising any legislative intervention They are also issues which in my view necessarily would loom large if either the genetic mother or the birth mother were by definition in all circumstances and without any possibility of legal intervention to be excluded by definition from being a mother for constitutional purposes However given the views which I have formed on the current definition of mother in the absence of legislative intervention those issues do not seem to me to arise on the facts of this case 8 10 For those reasons I have come to the view that the Constitution does not mandate any different approach to the definition of mother than that defined by the common law amended if it be amended by constitutionally permissible legislation It follows that in my view in the absence of definition the term mother when used in Irish law in current scientific circumstances applies equally to a birth mother and a genetic mother In the light of that finding I will turn shortly to the consequences of that finding for the issues which arise in this case However I should deal first with the question of whether this case can be resolved on the basis solely of a construction of the 2004 Act 9 Are the Issues simply ones of Statutory Construction 9 1 On one view it might be said that the only issue which really arises in this case is as to the proper construction of the relevant provisions of the 2004 Act The R family and the birth mother seek a declaration that the genetic mother is the mother of the twins and also a consequential order requiring the alteration of the registration of the birth of the twins to reflect that fact 9 2 On that basis it might be said that the two issues are essentially the same for they both might be said to turn on the question of who should be registered as the mother under the 2004 Act It seems to me that such analysis raises an important question concerning the true issues which arise in this case As noted towards the beginning of this judgment it can of course be the case that for a particular legal purpose a word is given a specific definition which may not exactly conform with the commonly accepted meaning of the word concerned and which may not therefore affect the way in which that same word might be interpreted if used in a different context outside the scope of the measure in which the definition is to be found The fact that for the purposes of one specific piece of legislation a particular term is defined in a particular way does not necessarily mean that that term used anywhere else has the precise meaning which its definition in the relevant legislation provides 9 3 On that basis it might be said that subject to ensuring that the relevant legislation is interpreted in a constitutionally permissible fashion this case really only turns on what the term mother as used in the 2004 Act means Looked at that way the issues might appear to come down largely to ones of statutory interpretation with a potential constitutional element to that interpretative exercise On that basis it might be said that the only real issue in this case is as to the meaning of the term mother as used in the 2004 Act informed if necessary by any constitutional requirements 9 4 However I am not persuaded that this case can be resolved on such a narrow basis In order to decide this case on that basis it would be necessary to accept one of two propositions Either that the State has devised a system for the registration of births which allowed for the registration of a person as a mother who was not to be regarded as the mother of the child concerned for most other legal purposes or that the definition or interpretation of the term mother as used in the 2004 Act must significantly influence or even determine the meaning of that term for other even potentially constitutional purposes 9 5 In other words if this case is to be resolved solely on the basis of a consideration of the regime for the registration of births without regard to the legal definition of the word mother for wider purposes such as those canvassed in the course of these proceedings the Constitution succession inheritance status and the like then it would follow that a person who is to be regarded as the mother of a child for for example inheritance purposes either might not be the same person as one who was properly registered as the mother of the same child for the purposes of the registration of the child s birth or that the meaning of mother in the 2004 Act governs inheritance rules Obviously such a situation can arise where for example in the case of adoption there is a further intervening and formal event being the adoption of the child concerned But in such a case there would be further formal measures being the relevant adoption proceedings which would recognise the change in status concerned But in the absence of such formal change is there a proper legal basis for treating the term mother as being different for registration as opposed to other purposes 9 6 In addition and as I have already noted there is the constitutional dimension Given the many references to family and mother in the Constitution can it be said that the State could properly exclude a person from being registered in the registry of births as the mother of a child by reason of the definition of motherhood for the narrow purposes of registration where that person nonetheless had the potential to be regarded as a mother for constitutional purposes depending on the circumstances of the case Or alternatively is someone to be regarded or not regarded as a mother for constitutional purposes by reference to the meaning of mother in the 2004 Act There was of course no constitutional challenge to the 2004 Act and for that reason it would therefore be wholly inappropriate to make any comment on the constitutional status of that legislation I should also restate my view that in the complex situation with which it is now faced the Oireachtas must be afforded a wide margin of appreciation in attempting to regulate the very difficult issues which arise However it seems to me that a form of regulation which precluded any possibility in any circumstances of a genetic mother from being recognised as the mother of a child or which precluded giving at least some recognition to the status of the genetic mother in some appropriate way would be of doubtful constitutional validity It would for example as already noted preclude persons such as the twins in this case from ever being part of a constitutional family with their father 9 7 While not decisive it is also worth noting that persons understandably place a high value on the way in which their status is officially recognised We do not maintain in this jurisdiction any general register of persons which records matters such as their age gender and indeed parentage The closest we have is the register of births marriages and deaths In those circumstances it is hardly surprising that persons are concerned that the way in which their birth is registered accurately reflects the legal situation for it is in normal circumstances the only official record of their status While it may at least in some circumstances be possible for the State to provide in legislation relating to registration for definitions which may not accord with everyone s view it is nonetheless important that the register of births reflects as best can be achieved the general legal position It would in my view certainly in the absence of some significant countervailing factor be difficult to justify an important definition for the purposes of registration differing very substantially from the meaning of the same term in other legal contexts 9 8 It might of course be that the Oireachtas actually took the view that for registration purposes alone the birth mother was to be regarded as the mother whatever might be the proper meaning of mother in other legal contexts But the suggestion that mother as the term is used for registration purposes in the 2004 Act means birth mother is one of inference rather than resulting from a clear legislative intent For that reason it seems to me that certainly in the absence of a clear wording displaying a legislative intent which would require a different approach the term mother as used in the 2004 Act should correspond insofar as possible to the meaning of the term mother as used in the general law Thus I would approach the issues in this case on the basis of first considering the meaning of the term mother in general law and only then considering whether there was anything in the 2004 Act which displaced that meaning for registration purposes I would not favour an approach which looked at the issues which arise in this case the other way round 9 9 For the reasons which I have sought to analyse I am not satisfied that the term mother when used as a general and undefined term in the law necessarily excludes either the birth mother or the genetic mother In the absence of constitutionally permissible regulation which would in the circumstances of a particular case or category of case wholly exclude one or other of those persons I am satisfied that both are entitled to be regarded as having some of the characteristics of a mother Given that view of the general law I am not satisfied that there is anything in the 2004 Act which is sufficiently clear to mandate excluding a person who might otherwise be properly regarded as having some of the characteristics of a mother from being registered as such in some appropriate fashion For those reasons I would not favour attempting to resolve this case on the narrow basis of a construction of the registration legislation even if approached with a constitutional eye I therefore turn to the consequences of and conclusions to be drawn from the findings already addressed in this judgment 10 The Consequences and Conclusions 10 1 For the reasons earlier set out I am therefore satisfied that both the genetic mother and the birth mother have some of the characteristics of mothers as that term is currently used in our law The term mother historically referred to both because both were as a matter of then scientific fact necessarily the same person They are no longer now however necessarily the same person But neither has in my view by reason of that scientific advancement necessarily lost their status 10 2 I fully appreciate that a legal regime where two persons can be regarded as having some of the characteristics of a mother of a child for legal purposes brings with it many complications concerning the very types of matters which were the subject of argument in this case Issues of constitutional status issues of citizenship and inheritance and doubtless others But those issues arise whatever the answer Those same issues have the potential to create difficulties if either the position argued for by the R family or that advanced by the State is found to prevail A child having two persons who have some of the characteristics of a mother may be highly counter intuitive But so is a child not being regarded as the offspring of the person who gives birth to them but so equally is the person who has given such a child half of their genetic material not being regarded as the child s parent Whatever the answer in the absence of careful detailed and sensitive legislation the result will be counter intuitive messy create a whole range of legal difficulties and undoubtedly be very unsatisfactory from the perspective of many persons 10 3 But there just is no solution short of the sort of legislation which may now be contemplated In the meantime all a court can do is to declare the position as it currently stands and invite the legislature to take urgent action For the reasons which I have sought to analyse I am satisfied that proper legal analysis confers aspects of the status of motherhood on the law as it currently stands on both the genetic mother and the birth mother Insofar as it might be a material consideration it seems to me that such an eventuality runs the least risk of unfairness That is not to say that there may well be cases where the merits would overwhelmingly favour declaring either a birth mother or a genetic mother as being properly regarded as the mother to the exclusion of the other But there is just no legal framework in which such a decision can properly be taken which differentiates between one case and another In the absence of legislation the law must be the same in all cases In those circumstances a law which does not exclude either has the potential to do less harm than a law which necessarily completely excludes one 10 4 While it might well cause significant difficulties for the registration of children born as a result of the advances in reproductive science which are at the heart of this case nonetheless it seems to me at present that a recognition that both a birth mother and a genetic mother are entitled to be registered in some way is the least bad solution Pending any relevant legislation it seems to me to be a matter for an tArd Chláraitheoir to put in place such administrative measures as might be necessary to give effect to that type of registration 10 5 While appreciating that this view does not command a majority I would have proposed that the Court make a declaration to the effect that the genetic mother is the mother of the twins without prejudice to the status of the birth mother I would also have proposed making an order directing an tArd Chláraitheoir to take whatever steps might be necessary to ensure that the registration of the birth of the twins reflects the status of the genetic mother thus declared In the light of the recognition that this would cause administrative difficulties for an tArd Chláraitheoir I would had this been a majority view have proposed hearing counsel further on the precise form of order which should be made THE SUPREME COURT Appeal No 263 2013 Denham C J Murray J Hardiman J O Donnell J McKechnie J Clarke J MacMenamin J 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 M R and D R Children Between M R and D R suing by their father and next friend O R and O R and C R Applicants Respondents and An tArd Chláraitheoir Ireland and the Attorney General Respondents Appellants and L L Notice Party and The Equality Authority and the Human Rights Commission Amici Curiae Judgment of Mr Justice Clarke delivered the 7th November 2014 1 Introduction 1 1 What is motherhood Who is a mother These are questions to which it might be thought there were uncontroversial answers Such issues could be debated at a scientific ethical or philosophical level However these proceedings are not or at least not mainly about how the term mother might be considered in those or other disciplines These proceedings are about the current legal definition of motherhood and the current legal identity of the person or persons who might properly be regarded as a mother 1 2 The underlying facts are neither disputed nor in any legal sense controversial The children named in the title to these proceedings are twins the twins There is no doubt but that the third named applicant respondent is the genetic father of the twins and that the fourth named applicant respondent is their genetic mother respectively the genetic father and the genetic mother collectively the genetic parents and together with the twins collectively the R family The genetic mother suffered from a medical condition which while permitting her to produce ova meant that she was unable to carry and give birth to a child The notice party the birth mother is the sister of the genetic mother The genetic parents came to an agreement with the birth mother that utilising modern scientific methods an embryo or embryos would be produced by the fertilisation of ova taken from the genetic mother by spermatozoa taken from the genetic father It was agreed that such embryo s would be implanted in the birth mother who would then carry what would turn out to be the twins to the point of their being born In those circumstances both of the genetic parents and the birth mother are all agreed that the genetic mother should be regarded as the mother of the twins in law 1 3 However the first named appellant respondent an tArd Chláraitheoir based on legal advice took a different view On the basis of that advice an tArd Chláraitheoir considered that the only person entitled to be registered as the mother of the twins in the agreed circumstances to which I have just referred was the birth mother It was on that basis that these proceedings were launched in which it is asserted that the genetic mother is entitled to be registered as the mother of the twins For reasons which it will be necessary to address in some detail the proceedings were successful before the High Court Abbott J who gave judgment on the 5th March 2013 M R Anor v An tArd Chláraitheoir Ors 2013 IEHC 91 1 4 An tArd Chláraitheoir and the other state respondents appellants collectively the State have appealed to this Court against that finding It should also be recorded that with the permission of the Court the Equality Authority and the Human Rights Commission collectively the amici were permitted as amici curiae to file written argument and make oral submissions at the hearing of the appeal While it would I think be fair to say that the position adopted by the amici was not identical to that urged by both the genetic parents and the birth mother and likewise was not identical to the position determined on by the trial judge in the High Court nonetheless the position of the amici was broadly supportive of the rights asserted by the genetic parents and the birth mother 1 5 This appeal raises difficult but extremely important questions But it is I think of equal importance that there be clarity about the role of this Court and equal clarity not just about what issues this Court has to decide but also about what questions are outside the scope of this Court s role For that reason it seems to me to be important to start with some general observations about the scope of this appeal 2 General Observations on the scope of the Appeal 2 1 As noted earlier this case is about how the law currently defines a mother for the purposes of the registration of a child In that context it will be necessary to say something about the legislation which governs the registration of births in due course It will also be necessary to say something about the legislation which enables the Court to declare persons to be the parents of a child There can be little doubt but that a proper analysis of that legislation forms an important part of the consideration which this Court has to give to the issues which arise on this appeal 2 2 It is also important to record the fairly obvious fact that there have been very significant advances in reproductive science over the last number of decades It will again be necessary to touch on some of those advances in the course of this judgment It is important however to be clear that the issues with which this Court is concerned are not at least directly ones of science It is important that the respective roles of law and science in controversies such as this are both well understood and clearly defined Law is to be found in the Constitution and in those other sources of law which the Constitution recognises Given that both the Constitution of the Irish Free State Article 73 and Bunreacht na hÉireann Article 50 1 recognise the continuance in force subject to consistency with the provisions of the respective constitutions of the law as it existed immediately prior to their respective adoption the common law forms part of the constitutionally recognised law of Ireland The common law is based on historical precedent with due recognition of the binding nature of the decisions of higher courts The common law has of course inherent within it its own capacity to evolve to meet changing circumstances and to apply established principles to new conditions Were it not for this inherent capacity the common law would have remained frozen either generally or at least in this jurisdiction under our constitutional regime and it is difficult to see how landmark cases such as Donoghue v Stephenson 1932 A C 562 Hedley Byrne Co Ltd v Heller Partners Ltd 1964 A C 465 and Central London Property Trust Ltd v High Trees House Ltd 1947 K B 130 could have been determined the way they were and indeed accepted as informing the common law in this jurisdiction At a minimum those and other similarly important cases can be said to have restated in altered terms or even redefined those aspects of the common law with which they were concerned 2 3 However the sole and exclusive power to make legislation under the Constitution is conferred on the Oireachtas Article 15 2 1 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 The application of underlying existing common law principles to new circumstances is one thing The development of substantially new principles or policies is another 2 4 Thus the way in which law can change is by means either of a legitimate and permissible evolution of existing common law principles to meet new circumstances and conditions as part of the inherent evolution of the common law by express legislation or by means of constitutionally mandated changes resulting from the role of the courts as interpreters of the Constitution In the latter context the law may change either because statute law is found to be unconstitutional common law rules are likewise found to infringe the Constitution or it is necessary to otherwise ensure that constitutional rights are protected and vindicated 2 5 However it is clear that the role of the courts in that process 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 appropriate 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 2 6 Where science fits into such a picture may very well depend on the circumstances of the case Just because scientific advances have rendered existing law obsolete does not mean that the courts can provide a ready solution There may of course as earlier noted be circumstances where the courts are required in the ordinary way in the exercise of the proper role of the courts in the evolution of the common law to develop common law principles to meet new scientific circumstances Contract law which developed in the age of the mounted courier and the telegraph has had to adapt largely without legislative assistance to the electronic era Traditional concepts in the criminal law have had to be applied in very different circumstances to those in which they originally evolved The application of long established law to an era of social media is often a vexed question There is therefore scope for permitting the proper evolution of the common law to meet new scientific circumstances But in many cases a law whether the common law or statute law which is outdated no longer fit for purpose and at odds with the developments in science can only properly be changed by legislation In such circumstances all the courts can do is to exercise their proper role It seems to me that that role is potentially threefold a The courts can ascertain whether it is both appropriate and permissible to allow for the evolution of common law principles to meet the sort of new circumstances and conditions which have been brought about by advances in science b The courts may have to consider whether in the light of the current state of scientific knowledge any breach of constitutional rights has been demonstrated such as would warrant the intervention of the courts but c In the absence of either of the above being appropriate the courts can only take such measures as may be within the courts proper constitutional role to attempt to bring about a necessary change in legislation 2 7 It is of particular importance to emphasise at this stage that this case is about the law as it now is and not about the law as it should be In order to consider what the law now is it is of course necessary to review what the common law traditionally said Next an assessment must be made as to whether that law needs to be reconsidered within the scope of the proper role of the courts by reason of modern conditions If necessary consideration may have to be given to whether any constitutional rights are involved and of course to the proper application and interpretation of any statute law governing or affecting the situation However if as a result of the proper consideration of all of those sources of law the situation remains unsatisfactory then the only solution is legislation To the extent that it might be said in such circumstances that the law has failed to keep up with science then this is a failing of the legislature rather than of the courts For the reasons which I have sought to address the courts have an important but ultimately limited role in the evolution of the law under our constitutional regime If law becomes outdated by reference to modern scientific developments there may be therefore only limited means available to the courts to remedy that situation The principal remedy may well lie in the hands of the Oireachtas 2 8 It might also be said that the law cannot and does not adopt an approach which flies in the face of common sense On a superficial basis it might be said that everyone knows what a mother is Why then it might be asked can there be any doubt about what the term mother means in law However a commonly accepted and common sense understanding of what a word may mean may come to be challenged by amongst other things scientific change Leaving aside altogether meanings of mother or motherhood which are concerned with changes in legal status brought about by fostering informal adoption or most importantly legal adoption it may well have been the case that no reasonable person would have entertained any doubt about what the word mother meant until relatively recent times It is true that the word mother might well have been applied with an appropriate prefix to a foster mother or an adoptive mother However everyone would have understood that the person concerned had only acquired their status by reason of the events giving rise to their having charge over the child concerned The term natural mother would always have been understood to have a different meaning 2 9 But would the proverbial man or woman or indeed child in the street now have a common understanding of precisely what the term mother means in the light of the scientific developments which are at the heart of the issues which arise in this case It might be said that every child knows what mother means But if the child was old enough to understand the basics of science and was told that one person had provided half that coming from the female side of their genetic make up so that they shared inheritable physical characteristics while a different person had carried them and given physical birth would the same child necessarily say that the answer to the question as to who their mother was was obvious I very much doubt it Scientific advances whether in understanding or technique can lead to all of us interpreting basic and common terms in a different way 2 10 But whether such a change affects the legal position in the absence of legislation depends on a proper analysis of the law as it stood prior to the scientific change which gives rise to the issue of difficulty The law often in very many differing areas deems things to be so even though they may not be so For the purposes of bringing certainty the law may define a particular word as having a very specific meaning for a specific purpose This may be so even though the common usage of the term may be different or wider or indeed narrower Likewise there may be good reason for a term being defined in a particular way for example to prevent abuse or confusion even though the definition may not correspond with ordinary usage It is of course the case that language used in all legally binding measures whether statutory or otherwise will ordinarily be given its normal meaning But where a term is defined it will be taken to mean what the definition says even if that is at variance with the commonly accepted usage of the term concerned 2 11 In that context of course it may be possible that a definition of a term becomes outdated The purpose for which the definition was adopted in the first place may cease to be fulfilled There may well in such cases be an important and urgent need to amend the definition But unless and until such an amendment is put in place the word remains defined as it is for all the adverse consequences which may flow 2 12 It seems to me that all of these very general questions arise in a consideration of the difficult issues with which this Court is faced For all of human and indeed one might say mammalian history there was no distinction between what one might call a genetic mother and a birth mother for as a matter of science both were necessarily the same person It would have been not only unnecessary but completely redundant to have two different terms to describe a female who provided part of the genetic material to a child and a female who physically carried and gave birth to that child 2 13 However that situation no longer necessarily applies It will be necessary to turn shortly to what the common law had to say about the meaning of the term mother and how that term is used in a number of relevant legislative provisions But that common law developed long before there was any potential for a distinction between a genetic mother and a

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