Supreme Court holds birth registration must list birth mother initially, not genetic mother, under Civil Registration Act 2004.

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 registrar. Nevertheless it

is in my view not an irrelevant consideration, insomuch at least as this is a matter of discretion rather than legal interpretation. These

then are only some of the considerations forming the background to this case.

The High Court Judgment

10. In an extensive judgment the High Court Judge considered detailed evidence from distinguished experts in the fields of genetics,

pregnancy and birth and in particular relating to the developing field of epigenetics. Epigenetics was described as the process of gene

expression whereby some genes are turned off and some turned on, and significantly for present purposes, this can occur through a

number of factors including what happens in the womb. The Court also considered such references in the case law as were invoked

by respective parties. The State, through the first named respondent, maintained that the person to be registered was the person

who had given birth. This, it said, was no more than an application of the ancient maxim of mater semper certa est, the mother is

always certain, or perhaps more precisely – ascertainable. The applicants on the other hand, together with the notice party,

contended that the evidence showing the genetic link between the fourth named applicant and the first and second named applicants

meant that the fourth named applicant was entitled to be registered as the mother of the first and second named applicants.

Although clearly an issue such as this, or any issue concerning surrogacy has not previously been considered in any detail by an Irish

court, the parties sought to mine the case law to extract dicta supportive of their respective positions. In particular, the applicants

relied upon dicta arising principally in the field of contested adoptions in which the Court has considered the importance of what was

described as the “blood link” between a mother and her child. Once such dictum was that of Kenny J. in G. v. An Bord Uachtála

[1980] I.R. 32 at p. 98:

“The blood link between the plaintiff and her child means that an instinctive understanding will exist between them which

will not be there if the child remains with the notice parties. A child’s parent is the best person to bring it up as the

affinity between them leads to a love which cannot exist between adoptive parents and the child. The child is now 12

months old and children of that age are infinitely adaptable.”

11. It would be surprising if any dicta from a period preceding the developments allowing assisted reproduction by the separation of

the ovum producing function from the birth giving function could resolve or even shed much light on the issue which arises in this

case. In the event, both sides quoted the same scripture for their own purposes. The applicants relying on the blood link as a proxy

for a genetic connection said that this approach showed that Irish law had always treated that connection as determinative. The

respondents countered by arguing that Irish law’s distinction between, and preference for, maternal links showed that it valued the

pregnancy and birth giving function over the mere provision of genetic material. I do not find the references to the importance of the

blood link either persuasive in themselves or helpful in the resolution of this case. The judgment also referred to the important

observations in Foy v. An t-Árd Chláraitheoir [2002] IEHC 116. That case had certain points of similarity with the present in that it

involved a claim by a person, in that case a transsexual, to have a birth certificate altered. There, McKechnie J. stated that “[t]he

resulting register is a document of historical value, being current only at the date of birth and not beyond. It is no more than that”

(para. 170). While I agree that the register (and certificate) is a document of historical value and documenting a historical fact, I

would respectfully doubt that it can be said to be no more than that. It clearly had considerable significance for the plaintiff in that

case and the applicants in this.

12. Having recorded the evidence and arguments the Court came to certain conclusions. While acknowledging the developing field of

epigenetics, it was found, unsurprisingly, that the influence of such epigenetics was not of such significance as to alter what it

described as the “overriding significance of chromosomal DNA for the purpose of determining identity and inherited characteristics

leading to a conclusion of the paternity and genetic maternity” (para. 98). The judge further rejected the State’s argument that

Article 40.3.3o of the Constitution had embedded an interpretation of motherhood so as to give constitutional approval to the mater

semper certa est maxim. While accepting that the Article used the word “mother” in the sense of the person carrying the child, the

Court concluded, relying on the decision of this Court in Roche v. Roche, that Article 40.3.3o had been adopted in the very specific

context of an anti-abortion amendment and did not have any broader significance and certainly did not determine the issue of

entitlement to registration. The core of the judgment is to be found in a passage at paragraph 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.”

Having reached this conclusion the Court relied on the judgment of O’Hanlon J. in S. v. S. [1983] I.R. 68 to conclude that any

irrebuttable presumption of mater semper certa est was inconsistent with fair procedures under the Constitution and did not

accordingly survive the entry into force of the Constitution. This is a time honoured formulation when dealing with pre 1937 and pre

1922 legislation or provisions of the common law, but this case illustrates its limitations, and to some extent its artificiality. If the

principle of mater semper was part of Irish law and became unconstitutional, this development took place when the facts changed in

the late 1970s and when the process of motherhood became divisible. Until that point it could not be said that there was any

difficulty with the application of the maxim: it was an elegant statement of an incontrovertible fact, and there could be no question

about the validity of any registration affected by application of the maxim. On an appropriate occasion therefore, it may be necessary

to reconsider the question of just how and when a provision of law can be said to be, or become, unconstitutional.

13. Having reached these conclusions, the Court turned to consider the evidence of what appeared to be an international or at least

European consensus that a presumption of mater semper certa est was the appropriate starting point in dealing with the surrogacy

question. This evidence was given by the registrar and comprehended the fact that even in those countries where surrogacy is

permitted, the birth mother is first registered as the mother. Then, if appropriate, commissioning parents may apply to change the

birth certificate. If this application is successful second birth certificates may be issued with evidence of the original circumstances of

birth left on the register too. The trial judge expressed the strong view that any so called international and historic consensus of

registration of the birth mother should not restrain the Court from coming to the conclusions it did, because no reasons had been

advanced to show why any such consensus had arisen. As a result, the Court granted declarations that the fourth named applicant

was the mother of the first and second named applicants pursuant to s. 35(8)(b) of the Status of Children Act 1987 and furthermore,

that she was entitled to be registered as mother on the birth certificates and the first and second named applicants (the children)

were correspondingly entitled to have her registered as their mother.

14. Finally the Court went on to consider what it described as “alternative arrangements”. While acknowledging that it was not

strictly necessary to do so in the light of the findings, nevertheless the Court expressed the view that it was feasible for the parties

in this case to agree, and then the notice party could consent to the twins being placed for adoption with the third and fourth named

plaintiffs and that it was likely “subject to the formalities, that such adoption would be sanctioned with the least possible difficulty”

(para. 108). In such an event, the problems envisaged with inheritance, taxation and marriage would be effectively eliminated.

However this conclusion did not affect the outcome of the case. The Court considered that the fourth named applicant was entitled

to registration as the mother as a matter of law. The respondents have appealed against the judgment, and the matter has been fully

argued in this Court by all the parties and the amici curiae.

Adoption

15. It is necessary first to consider the ancillary findings made by the High Court Judge that adoption was possible in this case since

at the time of birth, the notice party/surrogate/birth mother was no longer married and could place the children for adoption, since it

was argued that this removed any necessity to address the more general issues. The High Court considered that adoption would

regularise all of the “difficulties complained of in this case” (para. 83) as on adoption, the children would become legally and

indisputably the children of the third and fourth named applicants. This finding was relied on by the appellants (heretofore “the

respondents”) in this appeal. It was argued that the finding undermined the decision of the High Court both in practical and legal

terms. Adoption was a route which solved in a practical way all the applicants’ difficulties, present and anticipated. Furthermore, if

this was so, then a procedure was available to deal with the applicants’ collective difficulty, and accordingly it could not be said that

initial registration of the birth mother as mother, subject to subsequent registration of the fourth applicant on adoption, was an unfair

procedure and inconsistent with the Constitution. It was acknowledged that the applicants objected to the concept of adopting

children they regarded as their own and that they maintained that the fourth named applicant was entitled to be registered as their

mother as of right, and to the exclusion of any reference to the birth mother. It was suggested however that whatever psychological

validity and importance this might have for the applicants, the law could not, or at least should not, be used to bend the facts to suit

a personal narrative, however important that was to the individual. The fact was that the children were born to another woman and

that fact could not, and should not be entirely erased. Furthermore, for reasons which will be considered later in this judgment, the

appellants argued that a uniform practice of initial registration of a birth mother was an important part of the system of registration.

16. If it could be shown that the adoption procedure would necessarily, and as a matter of certainty, lead to the children becoming

the lawful children of the fourth named applicant without difficulty, then in my view that would have had a significant impact upon

this case, and removed the necessity for this Court, and more importantly the High Court, to consider the difficult issues raised here,

and which have important consequences for many other citizens not represented in these proceedings. (It is more important that

where appropriate, the High Court abstain from addressing far reaching issues which do not properly require determination, because if

it does not do so, it may not be possible for this Court to refrain from addressing such issues. The decision of the High Court will

stand as a declaration of law, which this Court may then be required to address). Furthermore, I imagine that if there was serious

practical difficulty in relation to inheritance, taxation or marriage, the parties would have been well advised to follow the route of

adoption which, even if cumbersome, at least avoids the necessity of engaging with the stress, expense and disclosure involved in

legal proceedings. However, in my view it does not matter if these proceedings were commenced for reasons of strongly held

principle, or obduracy, or a more general desire to drawn attention to a lack of regulation for a surrogacy, or a mixture of these

factors and others. I have come to the conclusion that the applicants were entitled to maintain these proceedings and have them

determined. I would be very reluctant to decide this case (or more accurately abstain from deciding it) on the basis that an adoption

process was readily available, at least on the limited argument and information advanced. Out of court solutions often appear

beguilingly simple when viewed from the perspective of the difficulties encountered in court, but become much more difficult once

investigated. Here I would require to have much greater clarity about the legal consequences of the fact that the birth

mother/surrogate mother although separated was still legally married at the time of birth, and about what precisely is involved in the

process of placing for adoption, the time scale and procedures involved and the degree of assurance, legal as well as practical, that

the applicants would indeed become the adopted parents, before I would be prepared to decide that adoption by the commissioning

parent or parents was both available, and removed all possible difficulties so as to render these proceedings either unnecessary in

fact or ill founded in law. Fundamentally however, the adoption process could only resolve the difficulties posed by surrogacy, and

assisted reproduction generally, if the legislation specifically addressed those issues, and the one fixed point in these proceedings is

that that is something which Irish legislation has, shamefully, failed to do. It would be a matter of pure happenstance if a current

adoption regime was able to resolve all these applicants’ practical and legal difficulties. I am not satisfied that it would, as anything

other than a nod and wink Irish solution to an Irish problem. In my view therefore, the applicants are entitled to maintain these

proceedings and the Court must address them.

17. The High Court Judgment is a careful consideration of a very difficult area. Considering itself to be faced with a choice between a

birth mother and a genetic mother, it eschewed ideology, and followed what it considered was the best scientific knowledge, and in

doing so can be said to have made new law. In deciding individual cases courts may unavoidably establish principles which determine

all other disputes raising the same issue of principle (at least until those principles are themselves altered by further decisions,

legislation or possibly constitutional amendments). That is in one sense to make law, even if it occurs much less often than students

and commentators imagine or would perhaps like. But such decision making, even with far-reaching effect, is not legislation nor is it

the same as legislation. A court’s function and skill is in deciding justly the particular case before it, and it does not necessarily have

full visibility of, or information in relation to, all other circumstances potentially affected by its decision. Furthermore, it is constrained

as to how it can decide a case. The court is required to decide a case according to the law. It is not free to decide a case simply

because it considers the result popular, wiser or more attractive, or indeed because it affects an acceptable if illogical compromise

between competing interest groups. The court’s options are limited. Taking this case as one example, the decision in the High Court

appears to have been one to all intents and purposes between the genetic mother and the birth mother, and the choice of one

excludes the other. Even then, whoever is registered must stay registered for all time, as I understand it, no one suggests that it is

open to the Court to create a scheme for sequential registration. Nor can it decide that if certain requirements are followed, the

commissioning parent is to be treated as the parent; still less can it decide what those requirements are. In principle, and subject to

the Constitution, a much wider range of options are open to the Oireachtas.

18. These structural constraints impose limits on the manner in which courts develop the law. In most cases courts develop principles

incrementally and avoid so far as possible sweeping generalisations, however much that might be applauded by the law student in

search of a simple or memorable principle, or commentators who happen to agree with the outcome. Sometimes this incremental

approach is couched in terms that the Court should not usurp the functions of the legislature. In this jurisdiction, courts on occasions

point to the sole and exclusive power to legislate conferred upon the legislature by Article 15.2 of the Constitution. But in my view,

this limitation is perhaps better understood as a limitation on the powers of courts which is inherent in the nature of courts and the

administration of justice. Sometimes the administration of justice may indeed require a decision which has dramatic and far-reaching

implications. If the decision is truly required to decide the case then it is not a valid objection that it sweeps far and it would not be

contrary to Article 15.2. But such a step must be truly required by the obligation to administer justice in the case, even considered

broadly. If it is not necessary to decide a particular issue or decide it in a particular way to decide the case, then it may be

necessary, or at least wise, not to decide it.

Submissions of the Respondents/Appellants

19. The appellants’ arguments focus on the broader implications of the determination in the High Court. Acknowledging as they must,

that little harm could be said to be caused if this fourth named applicant is registered as the mother of the infant applicants, the

appellants nevertheless argue that if the judgment of the High Court is correct, it must follow that the provider (female or male) of

genetic material is always entitled to be declared the mother or the father as the case may be, and registered accordingly. The

condition that so unfortunately afflicts the fourth named applicant and means that she does not possess a uterus capable of

permitting the implantation and gestation of a fertilised ovum, is relatively unusual (indeed it was said that this might be one of the

first cases in Ireland of surrogacy using the ovum of the commissioning mother). It is accepted on all sides in this case however, that

it is much more common that women experiencing fertility difficulties would have the reverse condition: while having a functioning

uterus, might not be able to produce ova, or at least ova capable of being fertilised and implanted naturally. A male partner may

desire children but be unable to produce sufficiently fertile sperm, and the couple may accordingly seek a donor. As the law currently

stands, in these more commonly encountered cases, the male and female partner will be registered as parents without difficulty: the

female because she gives birth and the male because he is either the husband or has acknowledged parenthood. But the appellants

point out that at least in theory, all of these people and their families would be at risk of losing their status and have their legal

position thrown into uncertainty if the High Court Judgment is correct. While it might be fanciful to imagine a stream of donors of ova

and sperm coming forward to assert parenthood, it is highly undesirable that these families’ legal status should be conditional and

defeasible as would be the case if the High Court Judgment is correct. Furthermore, since status is relevant to issues of inheritance

and taxation and therefore money as well as relationships, it is not just as implausible that for example, on marital breakdown, or on

issues of inheritance, spouses or siblings or other relatives may seek to deny to others the status of parent, child or sibling as the

case may be, if as the High Court seemed to conclude, genetics are decisive in determining parenthood.

20. It might be argued (although this issue does not appear to have been considered in the High Court), that this alarming scenario is

not so much a consequence of the ruling of the High Court as the unsatisfactory state of legislation. Since assisted human

reproduction has been possible, and has been at least tacitly permitted in Ireland in the sense that it has not been directly prohibited

or even regulated in any way, anomalous outcomes are possible whoever the Court decides is required to be registered on the birth

certificate initially. The law, it might be argued, cannot be decided on the basis of a head count. A decision must be made on the

basis of the best available evidence. If the result arrived at on this basis is insufficiently nuanced, then legislation can be introduced

and indeed a court decision might be the best impetus for such legislation. This argument has some merit. However, the appellants go

further and argue that a consequence of the High Court Judgment is to impose a significant straight jacket upon the types of

legislative solution that might be introduced. Thus it is argued that if the High Court Judgment means only the genetic parent could be

registered as the father or mother, and if this is constitutionally required (as the judgment seems to hold) then it would follow that

any legislative regime which did not accord with it would be invalid. Thus, for example, it might not be possible to introduce a regime

which would require initial registration of a birth mother followed by a process for the recognition and approval of a surrogacy

agreement and subsequent re-registration. There are many public policy reasons favouring such a process, and it is a solution

adopted in other countries, but it is argued that if the High Court Judgment was correct, it could not be legislated for here. Far from

stimulating legislation it is said, the judgment hinders it.

The Submissions of the Applicants

21. Faced with these arguments, counsel for the applicants have taken a more nuanced line. Arguing in favour of the outcome arrived

at in the High Court, counsel stopped short of supporting those portions of the High Court Judgment, particularly that quoted above,

which seemed to hold that registration of the genetic mother was constitutionally required. Instead it was argued that registration of

the genetic mother was required, as it happened, by the current state of Irish legislation and in particular those provisions introduced

by the 1987 Act relating to blood testing for proceedings determining parentage. Counsel, in a careful and intricate argument, sought

therefore to support the conclusion arrived at in the High Court but on a basis with less far-reaching implications for future legislation.

22. It is argued that “mother” was not defined either in the Civil Registration Act 2004 (“the 2004 Act” or “the Act of 2004”) or more

generally, perhaps for the reason that it was not considered necessary. Section 50 of the 1987 Act provides that, so far as that Act

relates to declarations of parentage, it is to be read together with the Births and Deaths Registration Acts. The 1987 Act plainly lays

emphasis upon blood testing as a method of proving parentage. In keeping with the science known at the time, it was understood

that blood testing could exclude, but not positively prove, parentage. Thus s. 40(2)(b) of the 1987 Act provides that where a blood

test was ordered by the court, the person taking the test should report to the court:

“(i) whether the person to whom the reports relates is or is not excluded by the results from being a parent of the person whose

parentage is in question, and

(ii) if the person to whom the report relates is not so excluded, the value, if any, of the results in determining whether that person is

a parent of the person whose parentage is in question”.

23. From these statutory provisions in relation to blood testing and reporting, two related conclusions are drawn by the applicants:

first, the law was and is guided by and reflective of the best available scientific knowledge and second, and more particularly, blood

relationship (if provable) is understood, and intended, to be the determining feature in parentage. In 1987, so the argument runs,

blood testing could disprove parentage and the only thing limiting its capacity to positively prove parentage was the then limitations

of the science. But as between blood and birth (which arguably was the issue in this case), the provisions of the 1987 Act make clear

that parenthood is in principle to be determined by blood. Now that DNA testing is available, that means that genetics determine

parenthood, and more specifically, motherhood.

24. The next step in the reasoning is the decision of the High Court (Budd J.) in G.N. v. K.K. (unreported, 21st of December 1993) in

which it was accepted that the blood tests contemplated by the 1987 Act could include DNA testing which might not simply exclude

paternity (which was an issue in that case) but might positively establish it. Thus the 1987 Act, it is argued, must be understood as

showing that paternity or maternity is to be established by blood testing and, now, by DNA testing.

25. This argument is reinforced by a consideration of the development of parallel provisions of the law of the United Kingdom. There,

blood testing was provided for by s. 25 of the Family Law Reform Act of 1969, and such testing was introduced in 1972. This testing

was to be carried out to identify the presence or absence of “inheritable characteristics of blood”. From the 1st of April 2001

scientific tests could be used rather than merely blood tests and the criterion was amended to provide for the identification of

“inheritable characteristics of bodily fluids or bodily tissue”. By way of comparison it should be said that s. 37 of the 1987 Act defines

a blood test in similar terms as a test made “with the object of ascertaining inheritable characteristics”. Importantly, UK law provides

for the regulation of assisted reproduction in general and for surrogacy agreements under limited circumstances, in the Human

Fertilisation and Embryology Acts of 1990 and 2008. It is pointed out that that legislation is careful to specifically provide that a

woman who has a child by IVF is a mother, and s.25 of the Family Law Reform Act 1969 was amended to provide that persons who

had children by artificial insemination or IVF were not to be excluded from parentage because of the absence of “inheritable

characteristics”. It is argued that it should be deduced from this that without such an express saver such a person would have been

excluded from the definition of parent. In simple terms, it is therefore argued that the UK, by providing for blood and now scientific

testing, made genetics the determinant of parenthood generally. Finally, it is argued that Ireland adopted essentially the same

approach in permitting blood testing (which must now be understood to include genetic testing) with the same consequence, but had

made no such similar saver. The conclusion for present purposes is that motherhood and maternity were, by statute, to be

determined by genetics and not by birth. An irrebuttable presumption of mater semper certa est could not therefore stand and the

presumption must be capable of rebuttal just as it was held in S. v. S. by O’Hanlon J. that an irrebuttable presumption of legitimacy

did not survive the coming into force of the Constitution, and that a man must have the right to disprove parentage. (It may be

observed that this last step is not essential to the argument since if the applicants are correct, “mother” in the 2004 Act means, in

effect, the genetic mother as a matter of statutory interpretation alone. If this is correct, then any irrebuttable presumption of

maternity even if it existed, has simply been overridden by statute, and it is not necessary to resort to the Constitution to achieve

that outcome)

26. It should be observed that the argument made here is made by reference to what is to be deduced from the statutory provisions

and the applicable case law, rather than from their application in this case. Although a declaration was sought that the fourth named

applicant was the mother of the first and second named applicants, the procedure under the 1987 Act was not invoked, no tests

were ordered and no reports made pursuant to s. 20 of the 1987 Act. Counsel for the applicants argued merely that on a true

interpretation of the statutory provisions taken together “mother” in Irish law, for the purposes of registration on birth, was, at least

in cases of dispute, to be determined by reference to genetics rather than the fact of birth.

Conclusion

27. It becomes important, indeed critical, to define with as much precision as possible the issue before this Court. The applicants

sought 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.