In a landmark appeal to the Supreme Court, the State has argued that the Oireachtas should have the power to define legal motherhood.
The State is appealing an earlier High Court decision which found that twins born through surrogacy were the children of their genetic, rather than their birth mother.
According to the
Irish Times, Michael McDowell, Senior Council for the State, argued that in order to preserve the legal principle of mater semper certa est, it was essential that the birth mother be initially recognised as the legal mother.
But he also argued that this could be altered later by legislation. This would mean the ‘commissioning parents’ no matter what their sex or biological connection to the child would be recognised as the legal parents.
McDowell argued that instituting a new legal regime around motherhood is not a job for the courts nor for private individuals by way of a personal agreement between them. Rather, he said, it’s a task that falls to the Oireachtas.
“If someone else is to become the mother it cannot be by a private contract – it must be by way of a legal process,” McDowell told the court.
The state's appeal is designed to facilitate Justice Minister Alan Shatter's Family and Relationships Bill 2014, which allows motherhood to be transferred to the “commissioning parent” from the birth mother, and defines parenthood as based primarily on intention rather than either genetics or the birth link.