Responding to today’s Judgment of the Supreme Court in the surrogacy appeal of MR & Anor –v- An t-Ard Chlaraitheoir & Ors in which the Irish Human Rights and Equality Commission previously appeared, the Commission called on the Government to enact legislation to secure the rights of children and parents in light of the Supreme Court’s comments in the case.
The Irish Human Rights and Equality Commission had appeared as amicus curiae (or friends of the court) in the case, drawing the Court’s attention to the human rights and equality principles which were raised in the case.
The case concerned a married couple who, unable to have children, entered into a surrogacy arrangement and the surrogate went on to give birth to twins. The couple provided the genetic material for the surrogacy and have cared for the twins since shortly after their birth, as had been agreed previously with the surrogate.
The surrogate and the genetic father were initially registered as the parents of the twins on their birth certificates. However, the genetic mother subsequently applied to the tArd-Chláraitheoir to have her name noted on the children’s birth certificates in place of the surrogate under the Civil Registration Act 2004. The application was refused and the couple brought proceedings in the High Court.
In March 2013 Mr Justice Abbott ruled that they were entitled to a declaration that the genetic mother is the mother of the twins pursuant to section 35(8)(b) of the Status of Children Act, 1987, and a declaration that the continued failure to recognise the genetic parents as the twins’ legal parents is unlawful and fails to protect their constitutional rights. The matter was appealed by the tArd-Chláraitheoir to the Supreme Court which heard the case over four days in February of this year.
In today’s Judgment, the Supreme Court reversed the High Court ruling, holding that there was neither a definitive definition of “mother” under the Constitution nor a relevant legal principle under the common law (the issue of motherhood in a surrogacy situation has not been addressed). While there was no constitutional barrier to legislate for appropriate laws on surrogacy, such legislation had not been passed despite the 2005 recommendations of the Commission on Assisted Human Reproduction. In the absence of such laws, the appeal was allowed and the orders of the High Court quashed.
Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission said “This is an important case that raises serious human rights and equality issues concerning assisted human reproduction, for which there is currently a legal gap in Ireland. The human rights and equality issues are clear: the rights of children being born under surrogacy arrangements are not governed by Irish law, while the Supreme Court has ruled that this is a matter for the legislature rather than the judiciary.”
Ms Logan continued: “In the Commission’s previous submissions to the Court, we addressed whether the common law principles at issue were compatible with the equality guarantee under the Constitution, in particular the child’s right to equality with regard to their relationship with their genetic mothers and status compared to other children. It is disappointing that the Government recently dropped the surrogacy provisions from the general scheme of the Children and Family Relationships Bill on the basis that the complex issues involved would be addressed by the Supreme Court’s Judgment. We cannot allow a situation to arise where some children born today in Ireland or abroad with Irish parents do not enjoy full equality with other children. It is time now for the Bill to be rethought to fill this gap.”
ENDS/
For further information please contact:
Fidelma Joyce, IHREC, Tel: 01 8589601, Mob: 087 783 4939, Follow us @_ihrec, www.ihrec.ie
Notes to Editor
The European Court of Human Rights has recognised the right of couples to conceive children by artificial means as an expression of their right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR) although it is legitimate for States to regulate how this right is exercised.
The European Court of Human Rights has also recognised the right to access information regarding one’s identity, and that uncertainty regarding one’s personal identity interferes with the right to respect for one’s private life under Article 8 ECHR.
The United Nations Convention on the Rights of the Child also gives express recognition to a child’s identity rights in Article 7 and Article 8. The 1996 Report of the Constitutional Review Group referred to Article 7 of the Convention (though not in relation to assisted human reproduction) recommending that a child ought to have an express constitutional right as far as practicable to his or her own identity.
On 1st November 2014, the Irish Human Rights Commission (IHRC) and Equality Authority merged to form the Irish Human Rights and Equality Commission under the Irish Human Rights and Equality Commission Act 2014.
Under section 10(2)(e) of the Act, the Commission may apply to the High Court or Supreme Court for liberty to appear in cases concerning human rights or equality issues. The IHRC has previously appeared in 17 cases before the High Court or Supreme Court and the Equality Authority in 3.