The Supreme Court in Dublin has overturned a High Court decision that would have seen the genetic mother of surrogate children being named as the legal mother on the birth certificate. During the initial ruling, the court determined that maternal rights could be determined in the same way as paternal rights; through DNA tests.
However, the Supreme Court has overturned this ruling, stating that it could have considerable consequences in surrogacy cases, where the donor would be the genetic mother, and could theoretically, at least, claim legal maternal rights from the birth mother. In this instance, the birth mother and embryo donor are sisters, and both initially agreed that the genetic mother be named on the birth certificate, but the appeal was fought between the family and the state registrar.
The family’s legal team said that they were bitterly disappointed with the decision as the court ruled that the government would need to introduce or change legislation, and that the birth mother current has the right to be named on the birth certificate. With surrogacy laws already coming under the spotlight in the UK recently, this case is only likely to add fuel to the surrogacy rights fire.
The High Court initially ruled that genetics should be used to determine maternal rights, just as it is to determine paternal rights. Under current law, if a man wishes to be named as the father, or wants parental responsibility, and there is dispute over who the father is, then a blood test or other DNA test is used, and samples compared from baby and father. The High Court ruling suggested that the same principle should be applied when determining who was the legal mother.
However, the state questioned this decision, stating that if it were allowed to run, then it would mean that donors would be considered the legal mother of a child, or that they would be able to claim and be given maternal rights to a child. They argued, and the Supreme Court agreed on appeal, that it was the birth mother that should be given the rights and named on the birth certificate.