Genetics and motherhood: should laws adapt to science?

By Philippa Brice

5 February 2014


A landmark legal case in Ireland has heard that legal motherhood should no longer automatically belong to the birth mother, but rather be dictated by genetics.


The case arose when a couple who had twins via a gestational surrogacy arrangement with the wife’s sister, since the wife had no womb and was therefore unable to carry the twins herself. The twins, conceived by IVF, were the genetic children of the couple, who subsequently applied to be registered as their parents on the children’s birth certificates – a request granted by the High Court.


The State is in the process of appealing against this decision in a legal case being heard by the Irish Supreme Court. Their lawyers argue that public law dictates that the birth mother is the legal mother, and this can only be changed by a process of public law (ie. adoption) and not by any form of private contract.


However, opposing lawyers argue that the Status of Children Act 1987 says that a declaration of parenthood can be issued on the basis of inheritable characteristics, and that genetic testing now allowed both motherhood and fatherhood to be established ‘as matters of absolute certainty’. Their position is that the impact of scientific advances in assisted reproduction has changed the effects of the law, and since the Parliament had not seen fit to amend the law itself, then the effects cannot be avoided.


This is an important test case. The underlying problem is how to provide appropriate protection to both surrogate mothers and genetic parents; although the immediate issue is a ruling for a specific case, the precedent it sets could be pivotal for the interpretation of existing laws in future cases. The result may therefore dictate whether or not Irish laws need to be revised in the light of medical advances with respect to parenthood.


For example, this case is an uncontested surrogacy issue, but a situation where there were dispute about the legal responsibility for children born following surrogacy would be much more emotionally charged. And what about children born following egg or indeed sperm donation? If the egg donor is the genetic mother then by logical extension of the law she could claim legal parentage. Similarly, an Irish man is currently attempting to establish his legal parentage of children born to an Indian surrogate mother, using her eggs, as a step towards claiming citizenship for the children.


One commentary observes that the confusion has arisen because of the Irish government’s failure to properly regulate surrogacy. Some countries have simply outlawed surrogacy, whilst others have made provision for the situation; for example, Israel requires State approval of all contracts concerning gestational surrogacy.


In the UK, without an adoption or parental order the surrogate remains the legal mother of the child, even if she is not genetically related to it. Parental orders transfer legal parentage to the genetic parent or parents of a child with the agreement of the surrogate parent, resulting in a new birth certificate for the child with amended parental names.

One could argue that situations such as the current Irish case arise because legislative change moves more slowly than science; in genetics and related areas, the technical possibilities have almost outstripped the capacity for public debate and legal consideration. However, just as health services need to adapt to changing science, so too must public policy; in both cases, looking ahead and anticipating the impact of emerging science saves time and trouble later on. 

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