Gaeilge

Title:	M.R. and D.R. (suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors
Neutral Citation:	[2014] IESC 60
Supreme Court Record Number:	263/2013
High Court Record Number:	2011 46M
Date of Delivery:	11/07/2014
Court:	Supreme Court
Composition of Court:	Denham C.J., Murray J., Hardiman J., O'Donnell Donal J., McKechnie J., Clarke J., MacMenamin J.
Judgment by:	McKechnie J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Concurring Denham C.J. Link O'Donnell Donal J. Murray J. Link Hardiman J. Link O'Donnell Donal J. Link Hardiman J. McKechnie J. Link Clarke J. Link MacMenamin J. Link O'Donnell Donal J.

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Denham C.J.

Murray J.

Hardiman J.

O’Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

BETWEEN

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 7th day of November, 2014

Introduction:
1. At age eighteen Mrs. R. discovered that she was born without a uterus, but that her ovaries were healthy and intact. After her marriage to Mr. R., the couple began to investigate what possibilities existed, by which they might have children and become parents. When in vitro fertilisation (“IVF”) and other forms of assistance in human reproduction were being discussed, the notice party, Mrs. R.’s sister, who by then had been separated from her husband by formal decree of judicial separation and with whom she had, during their marriage two children, offered to act as a surrogate. The intended process was that Mrs. R. would produce an ovum which, when fertilised by her husband’s sperm in vitro, would be implanted into the uterus of the notice party. Thereafter, the embryo would grow and develop in the gestational environment provided by the surrogate, thereby leading it was hoped, to the birth of a child. This is in fact what happened but with the good fortune that twins resulted, both being born on the 13th day of September 2008. Immediately after birth, when well enough to do so, the newborn children went home with Mr. and Mrs. R. who have cared for them, in what they consider as their family unit, ever since. The role of the surrogate, who participated in the process solely for the joy of seeing her sister and her brother-in-law have children, was always intended to be, and remains that, of a loving aunt. In common parlance therefore, Mrs. R. can be described as the genetic mother, the notice party as the birth mother or the gestational mother with Mr. R. as the father.

2. As advised or as may have been demanded by the fertility clinic involved in the process, the parties signed what was headed and described as, a “Surrogacy Agreement”. This was dated the 19th of November, 2007 with Mr. and Mrs. R. being referred to, as the “Commissioning Father” and the “Commissioning Mother” respectively, and collectively as the “Commissioning Couple”, and the notice party as the “Embryo Carrier”. Whilst further reference will be made to this agreement later in the judgment, it is sufficient to say at this point that the essence of its terms required the surrogate to relinquish physical custody of any child to the Commissioning Couple as soon as practicable following birth, who thereon were to become guardians and legal parents of such child. In furtherance of this arrangement the notice party also agreed to renounce any and all rights to custody, guardianship and access and further, to waive any and all other paternal rights, howsoever arising.

3. Every step of the process, which included the following,

1. the provision of the ovum and sperm;

2. the manner or method of fertilisation;

3. the implantation of the embryo into the womb of the notice party;


4. the carrying of the embryo through the gestational period to the birth of the children;

5. the intention that Mr. and Mrs. R. would take the children home with them upon birth, and would thereafter have, to the exclusion of the notice party, sole custody of and responsibility for, their upbringing and welfare; and

6. the role of the surrogate in her future relationship with the children, her sister and with Mr. R.;

were all agreed to in advance, and were when the occasion demanded, implemented in a fully consensual manner.

4. In almost every respect therefore, this must be regarded as one of the least complicated and most straightforward surrogacy arrangements that could exist. The identity of the donors, two only in number, was known at all times and as stated, were and are married to each other as a heterosexual couple: thus they constitute a family under Irish constitutional law. The involvement of the surrogate, a sister of Mrs. R., was purely altruistic in nature: although she remained married at the time, she had been formally separated from her husband for a period well in excess of ten months pre-birth. In addition, he the husband, has confirmed in a statutory declaration that he is not the father of the children. The roles of all parties, after birth, had been specified, as had the legal consequences of the arrangement, subject of course to the law recognising the legal validity of the agreement entered into. No issue arises regarding the welfare of the children. Each essential step of the process took place within this jurisdiction where also, all of the parties are domiciled and permanently resident: therefore every aspect of what occurred is governed purely by domestic law. Finally, such arrangement has been and remains wholly consensual. In all it was a community of interests.

5. Consequently, none of the difficulties which can arise, do so in this case; such difficulties are numerous, some foreseeable but many others not: and when present should not be underestimated. See Legal Problems with International Surrogacy Arrangements (Michael Nicholls Q.C.) for a useful summary in this regard. And yet of course even in this most accommodating situation, the case gives rise to seriously complicated issues of a social, ethical, moral, philosophical and legal nature. Mercifully for me, my analysis is essentially approached solely from the point of view of legal principle.

6. As required by law, particulars of the births were furnished to an tArd- Chláraitheoir, the first named respondent: these showed Mr. R. as the father and the notice party as the mother. Such particulars given on the female side, were without prejudice to the views of all concerned in the arrangement, that Mrs. R., and not the surrogate, should be registered as the childrens’ mother. An application to that end was made on the 14th September, 2010. It was claimed that the entry recorded on the 19th October, 2008 was erroneous in fact and should be corrected under s. 63 of the Civil Registration Act 2004 (“the 2004 Act”); in support of such application, evidence was tendered which established that Mrs. R. was the sole donor on the maternal side of the genetic material, which together with that of her husband, undoubtedly gave rise to the birth of these children. This fact has never been in dispute: on the contrary, it has always been so accepted by the Registration Authority. On receipt of this application an tArd-Chláraitheoir obtained legal advice as to how the request should be dealt with. He was informed by senior counsel that the rule, mater semper certa est (or “mater semper”), applied and therefore the only person which the law could recognise as the mother was the notice party, being the birth mother. Consequently, on the 14th June, 2011 he rejected the application to alter the name of the mother on the register of births. Such decision was the immediate cause of the institution of these proceedings, which were moved by way of a statutory appeal under s. 60(8) of the 2004 Act.

Reliefs sought:
7. In the points of claim, which for the following purposes can be regarded as having superseded the special summons, the applicants, those firstly named being the children followed by Mr. and Mrs. R., sought a number of reliefs which included the following declarations:-

1) that Mrs. R. was the mother of the children and thus should be so declared pursuant to the Status of Children Act 1987 (“the 1987 Act”),

2) that the refusal to recognise and acknowledge Mr. and Mrs. R. as the parents of the children was unlawful, as it failed to vindicate and protect the constitutional rights of the applicants, as a group, in particular their rights pursuant to the provisions of Articles 34, 40.4.1o, (sic) 40.3.2o and 41 of the Constitution, and

3) that Mrs. R. was entitled to be registered as mother of the children and the register should be corrected to reflect this fact.

As an alternative to such declarations, an order was also sought under s. 6A of the Guardianship of Infants Act 1964 (“the 1964 Act”) or pursuant to the inherent jurisdiction of the court, appointing both Mr. and Mrs. R. as guardians of the children.

8. The respondents/appellants, in objecting to any relief being granted, denied that in refusing to recognise Mrs. R. as the mother, the State had acted in violation of any constitutional rights of the applicants, either individually or collectively. They also asserted the ongoing supremacy of the mater semper rule, by which it was claimed that the birth mother, and no other, was the legal mother of the children. The notice party, and both the Equality Authority and the Human Rights Commission, who with the court’s permission made helpful submissions, supported the position of the applicants for various reasons.

The Medical and Scientific Evidence:
9. A fair representation of the medical and scientific evidence given in the High Court can be summarised in this way:

[1] An ovum is fertilised by sperm giving rise to a genetic construction comprised of 46 chromosomes forming a Genome from which each individual person is defined by way of DNA. The Genome ‘is the code of our life’ and ‘[y]ou cannot have life without DNA and it controls, ultimately controls everything.’ The Genome, i.e. gene sequence, is complete on fertilization. It does not change, save for mutational processes, which are untypical, or as a result of genetic defects. The growth and development of a person is as a result of genetics, the environment and the interaction between genetics and the environment. However, the uniqueness of each individual person is as a result of the recombination of the DNA of the donor, i.e. the 23 chromosomes of the male and the 23 chromosomes of the female, which occurs prior to the fertilisation of the ovum by the sperm. Each unique individual human being is formed at the point of the zygote, i.e. the fertilised ovum. In the context of the surrogacy arrangement in this case the fertilised ovum developed into an embryo before implantation. Upon implantation the embryo attaches itself to the wall of the uterus and the cells of the embryo create the placenta which provides for the blood flow, and ‘vital constituents’ therein, as between the Gestational Mother and foetus. The ‘architecture’ that the Gestational Mother provides through the womb is ‘critical’ to pregnancy. The placenta is the ‘anchor’ to this architecture. It is the Genome, or genetic structure, that is the catalyst for the development of the placenta. Thereafter, the Gestational Mother does have an influence on placental function and the ‘intrauterine environment … informs almost every outcome of the pregnancy’. However, ultimately the placenta is a structure that originates from the Genetic Mother and not the Gestational Mother in that the DNA of the placenta is ‘almost always’ that of the baby.

[2] Epigenetics is the phenomenon whereby the surrounding environment can control the availability of genes to be converted into proteins by influencing genes to react, or not, to their surrounding environment. However, the Genome determines how susceptible one is to the influence of epigenetics. Epigenetics do not change the Genome or core DNA/genetic structure. During the period of gestation it is the Gestational Mother who creates the environment within which the epigenetics seek to influence the embryo. A Gestational Mother may ‘potentially’ influence the development of a child through epigenetics. Regardless of the identity of the Gestational Mother the Genome, or genetic make up of a child, will not change. At a genetic level the extent of epigenetics is one of influence, not change. It influences the Genome in terms of genes reacting or not in a particular manner. Such influences may be carried through to future generations. However, epigenetic influences during the gestation period are reversible and can be reversed after birth. Although, there are some epigenetic effects that are not reversible. Epigenetic influences are not deterministic or causative, but rather are correlative. In that regard:

‘DNA isn’t changed by environmental and DNA sequence isn’t changed by environment influence but DNA itself can alter expression up or down or the form of the expressed value.’
[3] Epigenetics is not a concept applicable solely to the gestational period, or as a consequence solely within the provenance of the Gestational Mother, but rather Epigenetics can operate after birth. Whilst the influence of epigenetics may be ‘strong’ and have ‘dramatic affects’ on the expression of genes that influence is not confined to the gestational period but also the postnatal period.

[4] The contribution that a Gestational Mother may have to an embryo by way of epigenetics is secondary to the contribution of the Genetic Mother, as any epigenetic influence is secondary to the Genome which in turn dictates how susceptible an embryo may be to the influence of epigenetics. Further:

‘the DNA structure is not altered itself by epigenetics. DNA sequence is not altered by the environment whereas epigenetics is altered. Epigenetic sequences themselves let’s say, if we want to call that its own sequence, can be altered.’
[5] Microchimerism is the presence of cells within a person which are not of that person. During pregnancy cells can transfer, through the placenta, from the Gestational Mother to the unborn eliciting immune responses which contribute towards the development of the unborn’s immune system. This has no effect on the core DNA of the unborn, i.e. the Genome. Further, the ‘sole source’ of an unborn’s ability to respond to antigens (substance that stimulates the production of antibodies) as transferred is the unborn’s core DNA structure. Further, the number of such cells that transfer by way of microchimerism is ‘very, very, very, very small’ and ‘highly rare’ and almost insignificant.

[6] In response to a question on the prerequisites of motherhood, Prof. Green, stated:

‘There are the traditional prerequisites first of all, which is genetics, in the sense that a child would have inherited genes from both its genetic mother and its genetic father. In most circumstances that carries all the way through. So the person whose eggs are used to make the child will also be the person who carries and it will also be the person who raises and nurtures that child and would be their mother in every sense. But there are other aspects to motherhood. There are foster mothers, there are adoptive mothers, neither of whom necessarily has any genetic connection to the child they raise. And obviously there are also gestational mothers. The term ‘mother’ is used in all of those and I wouldn’t change that.’

(underline added)

[7] Both Prof. Green and Dr. Wingfield, witnesses for the State, were members of the Commission on Assisted Human Reproduction that produced a report in 2005. Both were members of the majority in terms of the recommendations made, including recommendation 33:
‘The child born through surrogacy should be presumed to be that of the commissioning couple.’
This remains the view of Prof. Green. The reasons supporting the recommendation were that ‘a major contribution to a child’s who they are is their genetic parentage’ and also the ‘intent’ on the part of the commissioning parents. Therefore, where a genetic connection to the commissioning couple co-exists with an intention on their part to conceive a child, parentage should be presumed to rest with the commissioning couple. Such a conclusion was reached notwithstanding recognition of the importance of gestation in the bringing of a child into existence. From the perspective of Dr. Wingfield, providing evidence as a scientist on the issue, she stated:
‘I would feel and I think most people would feel the parentage should lie with the commissioning couple.’
In expressing this view Dr. Wingfield, similar to Prof. Green, relied on the genetic connection between the commissioning parents and the child and the intent of the genetic parents.

In addition to Professor Green and Dr. Wingfield, the above summary also includes the views, where relevant, of Dr. Cliona Molony and Dr. Fionnuala Breathnach. (Ex. Submissions of Notice Party).

The High Court Judgment:
10. Arising out of the evidence given, the High Court made an important finding of fact. It did so by recalling the views of the scientific witnesses who explained that up to the time of the publication of the Report of the Commission on Assisted Human Reproduction in April 2005, the science of genetics, as exemplified by a straightforward deterministic view of the influence of chromosomal DNA material in relation to the determination of the identity and development of the foetus and baby, prevailed, but that thereafter the impact of epigenetics also had to be considered. Having reviewed such evidence, the learned High Court Judge, for the reasons set out at para. 98 of his judgment, stated:

“…that the influence of such epigenetic occurrences is not of such significance as to alter the overriding significance of chromosomal DNA for the purpose of determining identify and inherited characteristics leading to a conclusion of the paternity and genetic maternity…”

He concluded by saying that whilst the science of both branches is likely to develop further into the future, it is most improbable that epigenetics will ever trump the deterministic quality of chromosomal DNA.

11. It is worthy of note, although not specifically mentioned in the judgment, that epigenetics was not even discussed by the Commission in its Report, as despite ongoing research there was not a sufficient understanding of it at the time, to make such discussion worthwhile.

12. In so far as this was a finding purely of fact, arising from the evidence given,

it is very difficult to see on what sustainable grounds the appellants can succeed in their appeal in this regard or how such a conclusion can be disturbed by this Court. Whether the learned judge was correct as a matter of law in determining maternity for the purposes of the 1987 Act in this manner, is quite a separate and distinct issue.

13. In any event the judgment then proceeded to consider the legal issues by firstly looking at the mater semper maxim which was described as being a “presumption at law and in fact”. Correctly it was pointed out that historically, motherhood could be presumed once parturition had occurred: this followed as no other possible evidence could exist, which might controvert this presumption. The issue which faced the Court however was that if such evidence did exist, as it did in this particular case, could it be lawfully tended within the current legal and constitutional framework? Rejecting the State’s submission that the maxim obtained constitutional status by virtue of Article 40.3.3o of the Constitution and being of the view that the “blood link” was paramount in determining parenthood (Fennelly J. in N. & Ors. v. Health Service Executive & Ors. [2006] 4 I.R. 374 (“N. v. HSE”) and in J.McD. v. P.L. & Ors [2010] 2 I.R. 199 (“J. McD.”) (Donor Sperm Case): see also ss. 18(5)(a)(iii) and 30(5)(c) of the Adoption Act 2010), the learned judge then considered how such link could be established or determined in the circumstances before him. In the case of paternity there was but one answer, namely via DNA, being verified by general scientific means or more specifically by a blood test under the 1987 Act. By reference to his earlier conclusion as to the predominant determinism of the genetic material in the foetal cells, the learned judge was of the opinion that such a view justified an approach to maternity disputes, similar to that which applied in the case of paternity issues.

14. That being so the continuous application of the mater semper maxim, as an irrebuttable presumption, was not in his view compatible with fair procedures. Relying on the decision of O’Hanlon J. in S. v. S. [1983] I.R. 68, the judge held that the maxim did not survive the enactment of the Constitution in circumstances where IVF was involved. Accordingly, where an issue arose as to who the mother of a person was, that issue should be resolved at a genetic level and on the required link being established by acceptable evidence, such a person should be so regarded for the purposes of the 2004 Act. This conclusion he pointed out, did not raise considerations regarding the best interests of the child: although if it had, in his view in most if not in all cases, those would be best served by the approach which he had proposed.

15. Having disposed of the major issue in this way, he then considered whether his conclusion should be reviewed by reference to international standards if such existed, in relation to the application of mater semper, as an irrebuttable presumption. The evidence, in his opinion, was not sufficient to justify any such review. Finally, the learned judge saw no reason why Mr. R. would not be appointed legal guardian of the children if necessary and if Mr. and Mrs. R. saw fit, why formal adoption could not take place, with the least possible difficulty.

The Orders Made:
16. On the 16th May, 2013 the High Court made an order granting two declarations, firstly that Mrs. R. was the mother of the children, “pursuant” to s.35 (8)(b) of the 1987 Act (“the s. 35 Declaration”) and secondly, that Mrs. R. was entitled to have the particulars of her maternity entered on the birth register and further, that likewise the children were entitled to have particulars of their relationship with Mrs. R., also recorded on their birth certificates, by describing her as their mother.

17. If the High Court is correct in making a declaration under the 1987 Act, then that is the end of the appeal. Even though the Minister has not made Regulations under s. 48 of the 1987 Act which would facilitate the re-registration of the births, the clear evidence of an tArd-Chláraitheoir is that, without more, he will act on such a declaration. Consequently in these circumstances Mrs. R. will be registered as the mother of the children and will be so regarded. It seems to be accepted that such a declaration would carry with it, for Mrs. R., all of the rights, duties and responsibilities which enure to a natural mother and correspondingly for the children all the rights of a child so born. Where such children are born in wedlock the added protection of Articles 41 and 42 would follow. In other words neither the fact that Mrs. R. is not the gestational mother or the fact that the notice party is, would retain any relevance in a legal sense: in effect the fact that the gestational mother was a contributor to the growth and development of the children and gave birth to them would again, legally speaking, be of no significance. Nor from the children’s point of view would any importance attach to their particular method of conception or birth. Whether these assumptions accurately represent the consequences of such a declaration, is an issue which was not debated. I will therefore proceed as others have, but without offering any endorsement of such approach. The matter however becomes more complicated if the High Court Judge was wrong in making the s. 35 order which he did. In such circumstances it becomes a critical matter to define or at least to accurately describe what the true questions are on this appeal, in particular when discussing the constitutional issues.

18. The second declaration in and of itself does not state whether its granting is consequential to the s. 35 Declaration or whether it was intended as a stand alone order so as to vindicate and protect “the constitutional rights of the applicants”. Though not spelt out, these rights it must be presumed are based inter alia on Article 40.3.1° and 2° of the Constitution and also on Article 41, which would accord with the argument made. In addition, although Article 42 is not mentioned in the reliefs sought, it would naturally be associated with the provisions of Article 41 in the circumstances arising. Accordingly, in the absence of being expressly nominated I am satisfied that these are the principle constitutional provisions involved which is also consistent with the existing case law which has identified what many of these rights are; unfortunately however, save in the case of J.McD, not in any case involving assisted human reproduction.

What Are the Issues?
19. The main issues on this appeal can be considered as follows:

1. Whether the provisions of the 1987 Act, apply in such a way that the issue of maternity can be determined in the same manner as paternity is, in circumstances where non-union exists between the genetic and gestational mother.

2. Whether the maxim mater semper is part of Irish law and if so, at what level in our legal order: if it is, what is its scope and in particular does it apply to the circumstances of this case?

3. Whether arising out of the relationship between Mrs. R. and her children there are rights which exist at a constitutional level? If so, what are these rights, on what basis do they exist and what is the extent of the State’s duty to recognise and vindicate them?

4. Finally, if such rights exist, on what organ of the State should this duty, at least in the first instance, fall to.

20. For the purposes of the discussion which follows on these issues, I wish to make clear what meaning I intend to convey when using terms which frequently arise in this case. Up to the advent of IVF and other forms of assisted human reproduction, there was ever only one male and one female contributor to the entire human reproductive process: that is, from the provision of ovum and sperm, to the creation of the zygote and embryo, to the growth and development of the foetus and to the resulting birth of a child. There was but one mother and one father. There was no possibility of a third party making any contribution whatsoever to this process. Therefore there was a historical meaning to these terms which everybody understood and felt entirely comfortable with. The status of either the parents or the child was of course highly relevant to the issue of legitimacy, but not as to the meaning of these terms. It was considered an act of natural misfortune if either adult could not make his or her particular contribution to this process: such persons were destined to remain childless in the sense of never being a natural mother or a natural father. Consequently, unless the context clearly discloses otherwise, the terms “natural mother” and “natural father” will have their traditional meaning, regardless of both being married to each other or not.

The Statutory Landscape:

Registration of Births:
21. The office of the first named respondent was initially created by virtue of the Marriage (Ireland) Act 1844 and its remit was extended firstly to include births and deaths by the Registration of Births and Deaths (Ireland) Act 1863 and secondly, to include the registration of Roman Catholic marriages, by a private member’s Act of Parliament of the same year. As a result of these legislative enactments, a complete Irish civil registration system was then in place. That system was enhanced throughout the latter part of the 19th century and the early part of the 20th century, by additional pieces of diverse legislation. The only relevant Act in this context was the Births and Deaths Registration Act (Ireland) 1880 (“the 1880 Act”) and the regulations made thereunder, both of which remained highly influential with regard to several matters of substance and detail, until repealed and replaced by the 2004 Act.

22. Under s. 1 of the 1880 Act it was the duty of certain identified or identifiable persons (“qualified informants”) to give to the registrar within 42 days of birth, details of the particulars required to be registered (“the required particulars”), concerning such birth, and in the presence of the registrar to sign the register. In order of priority this duty was placed firstly on the father and mother of the child and in default, on the occupier of the house where the child was born, then on each person present at the birth and lastly on the person having charge of the child. The particulars required to be registered were outlined in forms contained, inter alia, in the Third Schedule of the Act. Section 1 has in large measure been reproduced in s. 19 of the 2004 Act as have the relevant parts of the Third Schedule which are now to be found in Part 1 of the First Schedule to that Act. The particulars currently requested, with regard to both mother and father are in substance the same as those required under the previous legislation. Special provision however has always existed in respect of a father who was not married to the child’s mother during the relevant period (para. 29 infra).

23. Under s. 68 of the 2004 Act an entry in the register is evidence of the birth to which it relates, if it was made in accordance with the Act and if signed by the person, being a qualifying informant, who had supplied the required particulars. The details so recorded on such entry may be altered only if permitted by the Act and if carried out in the manner specified. Under s. 63 a clerical error or an error of fact, may be corrected on application being made by any person with an interest in the matter, where the evidence of such error is considered adequate and where it is supported by statutory declaration. A similar power is given where a registrar himself or herself identifies an error of fact in any entry, whether so made by him or not (s. 64 of the 2004 Act). Further, an tArd Chláraitheoir is given authority to conduct such inquiries as he may consider necessary, in order to ascertain inter alia, whether the particulars of any given entry, are “correct and complete”. Power to alter such entry, by way of correction or addition, is then confirmed (s. 65 of the 2004 Act).

24. In general, it is accurate to say that the information which was required to be furnished regarding a birth and the means by which such was obtained and thereafter noted and recorded, had not been legislatively changed, as to content or basic structure, between the 1880 Act and the 2004 Act. In fact, apart from some very few changes the current regime remains very much the same as its predecessor. In neither Act is the word “mother” described, much less authoritatively defined: a situation which remains unaltered, subject to one exception, even when all other Acts which might be read in pari materia with the current provisions, are considered. As pointed out above there was obviously no necessity in 1880 to consider the situation of the mother but matters had changed quite dramatically by 2004, when external assistance in the process of human reproduction had become both well known and at least in theory, easily accessible. On the reasonable assumption that the legislature had kept itself abreast of such developments, an occasion of opportunity thus arose for the Oireachtas, to at least clarify the ongoing operation of the system when recourse to such means had been successfully secured. It did not however, do so. Unfortunate as that may be, this Court must now deal with the current situation in a context deeply rooted in its historical past.

25. There is no doubt but that the legislation passed in 2004, retained many of the provisions which are to be found in the 1880 Act, in particular those referring to and covering the matters above mentioned (para. 22 supra). Therefore even allowing for its stated purpose, namely to update and modernise the system, and despite extending its terms to cover divorce decrees, nullity decrees and the like, the current Act can be construed, where the context is comparable and where the relevant provisions are not evidently dissimilar, in light of the pre-existing law as ordained in the prior Statute.

26. Such approach is well justified as the following passage of the judgment of Murray J. in Crilly v. Farrington [2001] 3 I.R. 251, at pp. 291 to 292 shows :

“ Perhaps at this point I should expressly refer to a distinction between "legislative history" and "parliamentary history" of a statute - at least for the purposes of this judgment. In some writings and judgments the former term is used so as to include the latter but in classic common law tradition that is not the case. As the seventh edition of Craies observes at p. 126 "The cause and necessity of the Act may be discovered, first, by considering the state of the law at the time when the Act was passed. In innumerable cases the Courts, with a view to construing an Act, have considered the existing law and reviewed the history of legislation upon the subject". Craies also observed that it was hardly necessary to cite authorities for this proposition. This is an approach which permits an Act to be interpreted in the light of its legal historical context and with regard to the provisions of other Acts in pari materia. This long established approach of looking at legislative history is entirely distinct from that of parliamentary history where the latter refers to parliamentary debates and what occurred in the passage of a Bill through parliamentary procedures prior to its enactment.”

27. In addition, where words or expressions have been used previously which are repeated in subsequent provisions, they are liable to be given the same meaning as was formerly attributed to them. For this interpretative approach to apply, such words or expressions must appear in a similar context, operate without obvious differentiation and exist in statutes which can truly be read in pari materia with each other (The State (Sheehan) v. The Government of Ireland) [1987] I.R. 550). This rule will have its application enhanced where such words or phrases have been judicially interpreted or where they have a clear and settled meaning (Cronin v. Youghal Carpets (Yarns) Ltd [1985] I.R. 312). It is similar to the presumption against unclear or ambiguous changes in the law, and is based on the assumption that when employing terms whose meaning is settled and known, or which have been judicially determined, the Oireachtas intends to retain that meaning. If changes were envisaged, particularly those with far-reaching consequences for a settled practice or an established scheme of long standing, it is reasonable to expect that the legislature would have decisively so indicated, and would have done so by the use of words, or expressions or phrases, making that, unambiguously clear.

28. Accordingly, given the historical position, it seems to me that unless a basis can be identified in other provisions of the 2004 Act or by reference to some other legislative intervention, one should accord to the word “mother”, at least presumptively, the meaning which it was always understood to have. This particularly applies in the birth registration context, which is still largely founded in its original setting of the past. This viewpoint remains valid even if there is some slippage from that meaning in today’s common usage of the term. If this approach should be correct as I believe it to be, it will, because of the inescapable consequences which follow, clarify many of the issues in this case but will not be determinative of outcome. This working assumption however, is subject to an examination of the 1987 Act, an exercise which I will come back to later in this judgment.

29. Before continuing further with the discussion on the 2004 Act, I should mention s. 7 of the 1880 Act, (substituted by s. 49 of the 1987 Act), which is briefly alluded to above, whereby the father of an illegitimate child is excused from having to comply with the requirements which otherwise are duly imposed, upon a “qualified informant” (para. 22 supra). In addition, the name of such a person is not to be entered on the register, as father, unless at the joint request of the mother and himself, as verified by their signatures. Similar provisions continue to exist by virtue of s. 22 of the 2004 Act. Finally it should be noted, as also touched upon earlier, that under s. 28 of the 1880 Act, an entry in the register shall not be evidence of a birth unless such entry inter alia is signed by an individual, acting as a qualified informant, who has supplied details of the required particulars to the Registrar. Once again, a similar provision is contained in s. 68 of the 2004 Act (para. 23 supra).

30. The purpose of referring to these provisions again, is not simply to enhance the background context of the discussion but rather is directly related to the judgment of Walsh J. in O’B. v. S. [1984] I.R. 316, (“O’B.v.S”), where the learned judge expressed the view that by reason of ss. 1, 7 and 28 of the 1880 Act, the maxim mater semper certa est became part of Irish law, an issue which is specifically dealt with at paras. 83 – 87 of this judgment.

The Effect of the Birth Entry:
31. In addition to a duly noted entry being evidence of the birth in question, (s. 68 of the 2004 Act), such an entry, as to all matters recorded must also be presumed to be both accurate and correct. This issue, albeit in quite a different context, was looked at in my judgment in Foy v. An tArd Chláraitheoir & Ors [2012] 2 I.R. 1. In the quotation which follows, having spoken of the understandable necessity for every state to have in place a registration system, I stated:

“The purpose of the birth register is to record certain required particulars of all persons who are born in the State. The particulars are relative to the fact and event of birth and apart from permitted corrections, the entry is never thereafter altered or adjusted. It is therefore a snapshot of events occurring on a particular day. It is a record of historical fact. It is not intended to and does not record any other major event in a person’s existence, with death being separately recorded. In particular it is not intended to be a document of current identity although in practice this has not always been the case.” (para. 170)

32. The reference in that passage to the register being “a snap shot” of matters on a particular day and other comments to similar effect, should be understood in the context of the precise entry which was central to that case and as the law then was. The entry related to the “sex” of the newborn, with the required notation namely whether “Male or Female”, being ascertained by reference to the external genetalia which of course are observable on sight. Certainty in the result, to a high level of probability justified this historical approach, even if events or circumstances, subsequently arising or discovered, proved it unsuitable for a small number of people. In light of that decision, and given that the notice of appeal was withdrawn, it remains a matter of concern to me, (having delivered the judgment), that the responsive steps evidently required have yet to be finalised. In any event, the significance of the register, with regard to other entries, such as that of “Mother” or “Father” may be altogether more far reaching than simply a snap-shot of events on a particular day: this not only from a legal view point but also from a personal, reputational and social perspective. Therefore, in any assessment of the consequences of a particular entry, the purpose of its requirement must be considered as a matter of real importance.

Legitimacy/Declaration of Parentage: The Respective Position of the Parties:
33. For reasons which will become self-evident from the discussion which follows, the applicants, supported by the notice party, strongly rely on the 1987 Act to ground their submission that in legal terms, the DNA link between the child and the maternal provider, is determinative of who the mother should be. As Mrs. R. was the only contributor in this regard she is in law, they say, the mother of the children and accordingly, the High Court was perfectly justified in granting the declarations which it did. The same parties also rely on this statutory regime as fatally undermining the view that mater semper is an irrebuttable presumption of law. If a statute, which is unchallenged constitutionally, makes provision to the contrary as the Act does, the maxim, howsoever described, must stand aside. Therefore, in their view the basis of an tArd Chláraitheoir’s refusal to alter the register, was fundamentally flawed.

34. The State’s foremost answer, which in my view even at its highest point is a surprisingly narrow one, is to say that the birth mother has achieved constitutional status, as “mother”, by virtue of Article 40.3.3o thereof: as a result, in every Act of the Oireachtas and rule of law (irrebuttable or otherwise) the word “mother” must be given the same meaning so as to achieve constitutional harmony. Accordingly, the appellants argue that in this way, mater semper is reflected in the Constitution. They further say that in any event this maxim has long been accepted as part of Irish law (O’B. v. S.). Finally based on the argument as outlined, it is denied that the 1987 Act could or did, have any adverse effect on this principle. It therefore follows they argue, that the “blood link” is not determinative of motherhood and in so holding the trial judge was seriously in error.

The Status of Children Act 1987:
35. The 1987 Act was a major piece of social reforming, the importance of which must be looked at in the context of constitutional provisions, as judicially interpreted, which single out the family, being that based solely on marriage, for special recognition and protection under Articles 41 and 42 of the Constitution. A commendable preview of what the legislature set out to do is instantly evident from its long title, which title incidentally, was formerly known as the preamble. It was an Act to equalise to a very significant degree the rights of illegitimate children, and for that purpose to radically alter multiple legal measures, which inflicted upon such children that humiliating status, at great human cost and personal misery to them.

36. In order to achieve its purpose it was necessary to amend the law relating to legitimacy, guardianship of infants and maintenance of spouses and children: as it was in respect of property rights, both inter vivos and on succession. The Act then, in Parts VI and VII dealt with the issue of parentage and in Part VIII, partly abolished certain presumptions and otherwise clarified how those still surviving, should in future be applied. Finally, it empowered the relevant Minister to make regulations which would give effect to a declaration of parentage, within the system of birth registration. Most regrettably no such regulations have ever been made.

37. At the outset, the Act declared that unless a contrary intention appears, the legal relationship between every person and his or her father and mother should be determined, for the purposes of any subsequent Act of the Oireachtas, without regard to whether his or her parents were or had been married to each other (s. 3). The statutory rule, under the Legitimacy Act 1931 (“the 1931 Act”) (s. 1(2) thereof), which precluded the legitimisation of a child, where his father and mother could not legally have been married to each other within ten months preceding birth, was abolished. Amendments were then carried through to the specific areas of legislation which had been referenced earlier in the title (para. 36 supra). Whilst it is not necessary to consider in any great depth the scope of these changes, it can be said however, that such has resulted in a major and significant shift, in removing, or at least in substantially mitigating, the legislative stigma and consequential disability which the status of illegitimacy sought to sustain, and did so, cruelly, for so many years.

38. Of particular interest to this case, is as I have said, Parts VI and VII of the 1987 Act and also but to a somewhat lesser extent, Part VIII. In looking at these provisions it should be noted that the description of both “father” and “mother” is not particularly instructive: “father” includes a male adopter, but save for giving him a right to apply regarding issues of guardianship, custody and access (s. 6A and s. 11(4) of the 1964 Act as inserted by the 1987 Act) a non-married father is not recognised as the “father” of his child, for any other purpose of the Act. A “mother” includes a female adopter with the word “parent” meaning a father or mother as so defined.

39. As the provisions of the 1987 Act show, a court may grant to an applicant, a declaration that the person named in the application is his or her father or mother or that both are his or her parents, as the case may be. Such a declaration, to be established on the balance of probabilities, binds the parties to the proceedings and all persons claiming through them, and where the Attorney General is a party, also binds the State. This jurisdiction is, in addition to any other jurisdiction by which such a declaration may be obtained. Where the issue arises in civil proceedings the court may give a direction for the taking and for the use of blood tests, for the purpose of assisting the court in determining whether the named individual is or is not the parent as alleged (s. 38(1)). The blood sample so taken is tested “with the object of ascertaining inheritable characteristics” (s. 37). The presence or absence of such characteristics is found by examining the genetic structure or DNA in the blood of each subject person. The individual who is given charge of this process is required to make a report to the court in which by reference to the results he is asked to state whether, the person in question is excluded from being a parent, or if not so excluded, the value of such results in assisting the court to determine parentage. Where the result discloses no “inheritable characteristics”, a definitive finding would follow but the converse is not necessarily the case as there would remain the possibility of mutation or of siblings or close relatives being involved. However, where such complications do not arise, DNA testing, according to the evidence in the High Court, determines the probability of parentage to a level of about 99.99%.

40. It is in my view beyond argument but that the 1987 Act utilises, as the basis for determining parentage the DNA link, or as used in the High Court Judgment as a proxy, the blood link. The Act, for this purpose, makes no distinction between married or single people or males or females. Insofar as paternity is concerned, no difficulties arise at the level of principle: therefore subject to what is subsequently stated, this matter does not require any further elaboration, at least within the facts of this case. The real difficulty is on the maternal side.

41. As above stated (para. 33) the respondents to this appeal make the point, which is obviously open on the wording of the 1987 Act, that as a result of the provisions earlier noted, issues of maternity should be determined in like manner to issues of paternity. They rely on the statutory direction of searching for shared “inheritable characteristics” to this end (ss. 37 – 40 of the Act). This submission in my view, requires careful consideration and is a troublesome one to satisfactorily resolve.

42. The Act does not, in its relevant terms, either expressly or by implication, confine itself to situations, such as where a newborn has been wrongly positioned postnatally; or to circumstances of mistaken identity or such like mishaps: or to vexatious or fraudulent claims. It must therefore be taken in my view to have general application, which is further evidenced by the fact that any person, other than an adopted person, whether born in the State or not, may apply for or may by his next friend seek, such a declaration. It applies irrespective of what detail may have been entered in the birth register and also whether the suspected mother or father is dead or alive. Moreover, it does not differentiate between different methods of conception.

43. If the true version of the Act be that as contended for by the appellants, namely that in a divisible situation it expressly excludes the genetic mother from its provisions, such would dramatically restrict the number of people within its range, even by reference solely to the maternal side. Where the birth mother is known and if she only is to be regarded as the mother, it would be an entirely futile process to engage with any DNA investigation. Likewise, where she is not known, as the result of any such investigation whatever it might be, could not of itself establish the fact that it was she who gave birth. Again let us take the situation where there is no evidence of parturition but where a person is notoriously known to be or even notoriously suspected of being the mother in question. If the DNA link is to be disowned or disregarded, the person who wishes to establish parentage in such circumstances could never avail of the statutory provisions: whilst on the other hand, the birth mother who refuses to acknowledge her role, could by such denial or even by mere silence, avoid all responsibility for her offspring and otherwise deprive such person of deeply valued relationship rights, including those of succession. These difficulties are in addition to the further problem identified in I.O’T. v. B. & Ors [1998] 2 I.R. 321, where the Court agreed with the following statement of Keane J. at p. 376 of his judgment: “…the Oireachtas has erected a barrier to the obtaining of a declaration under s. 35 where the applicant cannot identify the putative parent or parents in respect of whom the declaration was sought.”

44. Quite evidently therefore if such be the correct interpretation, Mrs. R. cannot avail of the 1987 Act and although undoubtedly the person who gave birth, neither could it be of value to the notice party. Whilst in her case the State might presumably say that such recourse is not necessary, that would be to entirely miss the point. Furthermore, and of particular significance however is the fact that in this case the children would also be deprived of its provision(s).

45. Unfortunately from the respondents point of view however, these difficulties of themselves, cannot be decisive in resolving the central issue on this aspect of the appeal, which is in deciding on the meaning of the word “mother” for the purpose of the 1987 Act. In reality this truly is the net point and is clearly one of statutory interpretation. In this context the Act must be viewed in its entirety including the purpose of its enactment; further the mischief which it sought to address, one deeply embedded in historical times, must also be considered. But first it would be instructive to have a brief overview of the Report on Illegitimacy (“the Report”) published by the Law Reform Commission (“the Commission”) in 1982 (LRC 4-1982) and secondly, given the subject matter of the judgment and the proximity of its delivery to the enactment of the 1987 Act, to analyse the significance of the decision in O.B. v. S. [1984] I.R. 316.

Report on Illegitimacy:
46. The Law Reform Commission provided a report running to over 180 pages on illegitimacy: this report is widely believed to have provided the basis for the 1987 Act and thus is helpful in giving a contextual background to its provisions. Therefore, consideration of even some of its terms would be instructive: particularly those dealing with issues such as parentage and the use of blood tests in the establishment thereof. In addition, and perhaps even more to the point is the section of the report which refers to those, who have benefited from or who otherwise have been involved with the process of assisted human reproduction.

47. Having carried out an extensive review of what the existing law was in this and in several other jurisdictions and what the consequences of its application were, across a whole range of areas for those which the law regarded as illegitimate, and also for others associated by relationship, such as parents and legitimate siblings, the Report headlined its core position and key view as being that “ … as far as the rights of children are concerned, it is unjust for the law to distinguish between children on the basis of the marital status of their parents” (para. 193). It immediately continued:

“On the basis that the rights of children should not be restricted on the ground of the marital status of their parents, we consider that the status of illegitimacy should be removed from our law. It seems to us impossible to have true equality of rights as long as this status exists.” (para. 194)

This most basic premise of the report was carried forward in both substance and form into the 1987 Act.

48. In the exhaustive discussion and analysis which followed, the Commission then considered how best changes may be effected to implement this intrinsic value. As stated, areas such as maintenance, guardianship, custody and access, property and succession rights were all dealt with, as was the prohibition contained in s. 1(2) of the 1931 Act (para. 37 supra). In addition, the report having identified as an integral part of this exercise, the importance of parentage and of parental relationship, went on to discuss how the law and the legal system might provide for the obtaining of such a declaration, in a way which would be less cumbersome, more straightforward and result in greater certainty than that existing, as well as putting in place attendant safeguards so that false and malicious claims could be identified and rejected. An important consideration in this regard was of course that of evidential proof.

49. At para. 203 of the Report the Commission stated:

“It should be open to anyone with a proper interest to seek to establish the parenthood of a person. But our law could greatly assist the determination of the question if it set out realistic evidential rules, including legal presumptions, designed to ensure that commonsense prevail and that the delay and trouble associated with largely unnecessary applications for judicial declarations be, so far as possible, avoided”.

Three aspects of the Commission’s Report are of particular interest in this context: these are blood tests, artificial insemination and evidential presumptions, including the abrogation of some presumptions but the continuing use, in modified form, of others.

50. In paras. 250 to 272, the Report dealt with “Declarations of Parenthood”. Under that heading it considered,

(i) who should be entitled to seek such a declaration,

(ii) whether the mother or father should be compelled to identify the other party to the relationship which gave rise to the birth of the child,

(iii)whether there should be a time limit for the making of such an application,

(iv)what court should have jurisdiction to grant such a declaration,

(v) what range of people should such a declaration be binding on, and finally

(vi)what should the effects of such an order be.

51. In its view the use of blood tests would constitute a very useful evidential tool as to paternity. This is because there are certain properties of blood components which are inheritable, detectable and varied: in that way they act as genetic masters and thus comprise “the most useful tool in solving parentage problems”. As scientific information then stood, the Commission rightly pointed out that blood tests could definitively exclude certain individuals from being a possible father of a particular child but that an affirmative declaration of parenthood so based, could not be made to the same level of probability. Notwithstanding this limitation however, it was in the Commission’s view desirable that such tests “should be capable of being availed of whenever they are likely to throw light on the question” (para. 16): this phrase was based on Lee, “Current Status of Paternity Testing”, (1975) 9 Family L.Q. 615 at p. 616. As to the process by which a blood sample should be taken, analysed and reported on, the Commission deferred making any proposals in this regard, suggesting instead that the relevant Minister should make the appropriate regulations to cover such matters.

52. Of particular significance was the following brief but potentially decisive paragraph, in considering the ambit of the Report’s intended reach: in particular as to the use of blood tests. At para. 206 it said:

“Once the concepts of legitimacy and illegitimacy are abandoned, the presumption of legitimacy becomes merely a presumption of parenthood. Indeed, since maternity in our law is not regarded as raising a question of fact, the presumption becomes in practice one of paternity.” (emphasis added)

53. Having carefully scrutinised the entirety of the Report I am driven to the conclusion that, save for its specific reference to artificial insemination (next mentioned), the Commission did not intend nor did it address the situation of the instant case where there are divisible providers, as to the genetic material on the one hand and as to the gestational input on the other. Quite evidently the Oireachtas was not bound by the Report and had both the capacity and power, to deal with the instant type of situation if it saw fit to do so, in either the 1987 Act or indeed elsewhere. The question which I will revert to, is whether, despite the fact that the relevant statutory provisions ex facie apply equally to both male and female, the latter in a unitary sense, did the legislature intend, or more accurately do the enacted provisions cover, the distinction which is at the heart of this case.

54. Early in the Report, under the heading of “Artificial Insemination”, the Commission identified two situations of such assistance and commented upon both (paras. 99 to 108): beyond that it made no further reference to this topic. The first instance was where the husband’s sperm is used (artificial insemination by husband: “AIH”) with the second being where a third party donor is involved (artificial insemination by donor: “AID”). It points out that, as of the date of the report, the status of a child conceived by AIH is the same as a child conceived by ordinary means. If the marriage is valid, the child will be legitimate: if void, illegitimate; and if voidable and so declared, will retrospectively be illegitimate. On the other hand a child born by AID is illegitimate, because such a child is not considered to be the child of the union between husband and the wife.

55. Based on this analysis no particular difficulty could be seen where the husband’s sperm was used, as the situation was quite clear cut. Where the donor was not the husband however, matters were much more complicated. In that scenario it was proposed, via the enactment of new legislative measures that the law would recognise the existence of a “relationship” between donor and child but none as between the mother’s husband and the child. What precisely such a “relationship” would involve, was not detailed but for what was described as “obvious reasons”, would not include for the donor, rights of guardianship or succession or rights to the estate of the child: who likewise should not be entitled to succeed to the donor’s estate. Perhaps the explanation for the lack of detail was the Commission’s view that whatever the legal consequences of such relationship might be, the same were unlikely to give rise to issues in practice as normally the donor and the child would not be known to each other.

56. Of some significance for the scope of the Report was the Commission’s decision not to further engage with the legal implications of artificial insemination. In so deciding it stated that this entire area, raises important moral and social issues which are more properly matters to be determined by the legislature. Whilst identifying a number of problems which could arise where artificial assistance was availed of, the Report expressly declined to involve itself or otherwise intervene in this matter.

57. Two conclusions can be drawn from the above. The first is that whatever discussion took place within the Report about third party assistance in the reproductive process, it was confined to the contributor being on the paternal side and not otherwise. The second which quite evidently follows from the first, is that it did not conceive of a situation where there might be diversity between the genetic and gestational mother. Hence it cannot be argued that in making its recommendations, the Report provided for or even envisaged the type of problem which exists in this case, much less in suggesting a legal method by which the question of who the mother is, in such a scenario, might be resolved.

The Decision in O’B v. S. [1984] I.R. 316:
58. Before the enactment of the 1987 Act, the Supreme Court in 1984, handed down a significant judgment in O’B. v. S., which dealt with a claim made by an illegitimate daughter of her deceased father who had never married, to the effect firstly that she was entitled on his intestacy to inherent the whole or part of his estate, and secondly that if the relevant statutory provisions prevented her from doing so, then such were unconstitutional.

59. The claim, for its success, depended on establishing that the term “issue” in s. 67 of the Succession Act 1965 (“the 1965 Act”) included illegitimate offspring: if the daughter failed in this regard then in accordance with the provisions of s. 69 of the Act, the deceased would have been regarded as having died without leaving spouse nor issue nor parent: his estate in such circumstances would be distributed between his brother and sister in equal shares, who in the events which happened were in fact the plaintiffs in the action.

60. On the statutory interpretation point, the Court whilst acknowledging that the term “issue”, in “normal talk”, could refer to those born either in or out of wedlock, approached the matter by asking what did the Oireachtas mean by this term in the context of intestate succession. The Court had no doubt but that the legislature was fully aware of the distinction, which existed pre-1965, between the succession rights of those who were and those who were not legitimate, pointing out that the Act expressly included within the meaning of the term, those children who were legitimised under the Legitimacy Act 1931, and those who were adopted under the Adoption Act 1952, both Acts as later amended. Subject to these two exceptions however, and noting the absence of any provision to include children born outside of marriage, the inevitable conclusion in the court’s view had to be that the long established meaning of the word in the law of succession, was what the Oireachtas solely intended by the use of the term in the 1965 Act. As that meaning referred only to issue born within marriage, the defendant could not succeed on this point. The Court then went on to consider the constitutional argument.

61. The first argument made was based on Article 43.1.2o of the Constitution which reads: “The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property”. It was submitted that “the right”, so described, “…to inherit property” had to vest at all times in some individual: in this case because of her relationship with the deceased that person was the defendant. Given however the Court’s ruling as to the true meaning of the term “issue”, the effect of s. 67 of the 1965 Act was to prevent her from inheriting her father’s property and therefore its provisions were incompatible with the guarantee contained in the provision as quoted.

62. This submission was rejected on the basis that the true meaning of such a guarantee was that the State would pass no law attempting to abolish the general right to inherit property, which by previous disposition had been bequeathed to some individual. As this clearly could not result from an intestacy, this provision of the Constitution was not applicable. Such finding in the court’s view, was also a complete answer to the further claim that the failure of the State to make provision whereby an illegitimate daughter could succeed to her father’s estate on an intestacy, was a failure to vindicate her property rights, under Article 40.3.2o of the Constitution.

63. The substantive constitutional argument however was one based on Article 40.1 of the Constitution. That reads:

“1 All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

64. The Court had no doubt but that a person born outside of marriage, is as a human being, equal to a person born within marriage: the equality guaranteed by that Article provides that all human persons, by virtue of their human self, are held equal before the law. That being so it was therefore necessary to consider the proviso also contained within that Article.

65. At the outset the Court agreed that a person so born could not be regarded, by reference to her illegitimacy, as having any difference of capacity, physical or moral, or of social function. Accordingly justification for the differentiation in the defendant’s treatment could not be found within the proviso: but such was not determinative of the ultimate outcome. If the distinction could be supported by reference to any other Article of the Constitution, then, by reading the provisions as a whole, the disputed statutory provision or rule of law could not be described as being unjust, unreasonable or arbitrary: in short it could not be considered as constituting “invidious discrimination”, a phrase, borrowed from the jurisprudence of the US Constitution and first used in this jurisdiction by O’Dalaigh C.J. in O’Brien v. Keogh [1972] I.R. 144 at p. 156.

66. Recourse was therefore had to Article 41 of the Constitution so as to find such justification: in particular Article 41.1.2o in which the State guarantees to protect the family in its constitution and authority. One can add Article 41.3.1o which guards with special care the institution of marriage upon which the family is founded. On such basis, the Court held that the duty to protect the institution of marriage justified the difference in treatment, in that it was open to the Oireachtas to pass legislation regarding succession rights, which was designed to strengthen the position of the family and to place members thereof in a more favourable, or as actually stated, in a “more superior position”, than non members. It expressed no view on what limitations if any, these constitutional provisions might impose on the Oireachtas if it was minded to abrogate this discrimination. Likewise it did not speculate on what the outcome of the equality argument might have been if Article 41 of the Constitution did not exist or at least did not do so, in the form in which it does.

Reason for such Reviews:
67. The purpose of referring to the Law Reform Commission’s Report is twofold: firstly to outline the Commission’s view of what the existing law was at that time, and secondly to highlight their recommendations for change in this area. The purpose of referring to O’B. v. S., was to indicate that even in an area of such acute personal and social significance, as with succession rights, the status of illegitimacy continued to have a pivotal impact on one of the most profound relationship s known to man and secondly, to point out that at a constitutional level, the perpetuation of such discrimination by statutory provision, could still be justified.

68. Because of their nature, it can confidently be taken that the Oireachtas was fully familiar with both the Report and the decision in O’B. v. S., when it decided to enact the 1987 Act. Accordingly neither that contextual setting or background can be disregarded when the relevant provisions of the Act, in particular those within Parts VI and VII thereof, fall to be interpreted.

The Object, Scope and Application of the 1987 Act:
69. In any exercise of interpretation the end point which a court seeks to achieve or arrive at, is to discover what Parliament intended by the legislation in question. All rules of construction both primary and secondary are designed to facilitate this task. One does so of course, by reference to the wording of the provision(s) in question, extending even to the Act as a whole if necessary. The purpose and aim of the enactment and the scheme which Parliament has designed to achieve the intended result, may also play a part. Words which are commonly understood should be given their common meaning: words which have been defined or described in legislation, which is capable of being read in pari materia with the subject legislation, should similarly be construed unless some contra indicator has been given. Likewise with words or phrases which have been judicially interpreted with added importance being attached to any term, the meaning of which has been constitutionally authorised. Recourse may also be had to the Interpretation Act 2005 where appropriate. An overarching constituent of this exercise however is that “context is everything”.

70. So the question is whether the relevant provisions of the 1987 Act provide, that where fertilisation and gestation are divisible, the person who donates the genetic material is the mother of the resulting child, if not for all legal purposes then at least, for birth registration purposes? If the answer to this is yes, the role of the gestational mother must be disregarded as it is impossible to countenance, in the statutory scheme which exists, the listing of two females as a child’s mother. Therefore the issue is whether the Oireachtas in 1987 intended or provided for this, or put slightly differently whether such a result is ascertainable from the text and purpose of the Act as a whole when considered in the contextual setting of its enactment?

71. I think it is uncontroversial to say that the 1987 Act drew heavily from the Report of the Law Reform Commission, which as noted, make certain recommendations for the abolition of illegitimacy in our laws. The raison d’etre of the Act was to equalise the rights of all children, so that State laws would no longer discriminate in the manner which they had for centuries. This discrimination was singular in source: it resulted from the status of a child’s parents which in turn was determined solely by reference to marriage. If married, the offspring born as a result had a status of legitimacy: just as legitimacy was a status however, so also was illegitimacy. Belonging to which one was the difference in being treated as an insider or discarded as an outsider. So much depended on those vows, not only from a legal perspective but also from a social perspective: reputation, standing in society, admission into a vocation, profession, or social organisation, were but some of its effects. Being persuaded that such condition was unjust to innocent children and being satisfied that there was no constitutional impediment in so doing, the Commission reported as it did. Having resolved that the institutions of the State should no longer support such injustice, the Oireachtas considered and then responded. So from 1987 onwards the marital status of a child’s parents would be irrelevant in determining his relationship with them and all other relationships would be determined accordingly. In effect, illegitimacy was removed from our public laws.

72. That was the defining principle of the 1987 Act. Given the diverse pieces of legislation which manifested consequences of illegitimacy, the Oireachtas, with detailed measures, dealt with specific areas such as those mentioned above. In addition it sought to provide a legal mechanism whereby parentage could be ascertained. All of these provisions were made in furtherance of the objectives which the Act sought to pursue.

73. As part of the overall scheme, the Act addressed various presumptions and other evidential matters, which in this area of the law had been routinely applied by custom and convention, for many years (ss. 44 and 46 of the 1987 Act). These sections provide as follows:-

(i) that any presumption of law as to legitimacy/illegitimacy should be abrogated,

(ii) that, in respect of a child born to a wife during the currency of a marriage or within ten months after its termination for whatever reason, the husband, by presumption, should be regarded as the father unless on the balance of probabilities the contrary was established,

(iii)that where a wife who was formally separated, gave birth more than ten months after the judicial separation or the separation deed took effect as the case may be, the husband, by presumption, should not be regarded as the father, unless on the balance of probabilities, the contrary was established,

(iv)that notwithstanding the circumstances referred to at subpara. (2) of this para, a person whose name was entered as the father of the child on the birth register, should be presumed to be the father, unless on the balance of probabilities, the contrary was established.

Finally, s. 47 of the Act abolished the rule in Russell v. Russell [1924] A.C. 687.

74. Quite evidently the Oireachtas did not believe that the changes effected in respect of these evidential matters, were in themselves sufficient to bring the required degree of clarity and certainty where parentage was in dispute. Hence the enactment of Parts VI and VII to the Act. As these provisions have been referred to earlier (paras. 38 to 40 supra) it is unnecessary to repeat them in any detail. It is sufficient to recall that the court, when faced with a disputed parentage suit, could issue a direction for the use of blood tests to assist with its decision. The purpose of such a test was to ascertain the “inheritable characteristics” which could be identified from the sample. With such information it would be possible, as scientific knowledge then existed, to affirmatively discount an individual as a potential parent but it would not have been possible to unconditionally affirm parentage. This uncertainty stemmed from the possibility of mutation and also from the complications which could arise if siblings or other near relatives were involved. In any event it is clear, that the legislature considered that the use of such evidence, certainly on occasion, could be of essential significance, in determining who the parent was.

75. The Act, in this regard, made no distinction whatsoever between male and female. As inheritable characteristics can be identified only from a genetic donor, it follows according to the respondents, that maternity as well as paternity, must be determined in this manner.

76. This argument in my view is patently open on the wording of the relevant provisions and its forceful presentation by these parties, is one which is quite obvious to understand. Indeed, at one level, it is unanswerable. Without distinction as to sex, the Act seeks to ascertain inheritable characteristics from a blood test. Those characteristics are to be found only in genetic material. Therefore in its intended utility that test can apply and be applied with equal force to both male and female. Hence, the submission as made. Notwithstanding how attractive this argument is, however, the conclusion as urged is not an end in itself, and in my view is not determinative of this issue.

77. Prior to the advent of IVF in the late 1970s it was clear that if one could establish the identity of the ovum provider, then one would also know with certainty that such person was the only female entity involved in the reproductive process. Likewise if one could identify the birth mother a similar result would follow. But as science developed in this area thereby giving rise to multiple forms of assistance inter alia on the maternal side, such a deduction could no longer be assumed. Of course in the absence of a third party being involved, the historical understanding prevails and will continue to do so. Therefore in the vast majority of cases the type of difficulty which exists in the instant case, will not arise. But with such technical and medical advances, the traditional conclusion cannot be assumed, where reproductive assistance has been involved.

78. The ultimate question of interpretation therefore is whether by identifying the blood sample as the primary basis for establishing parentage, without differentiating between male and female, did the Oireachtas intend in 1987 to cover a situation like the instant case where the genetic and birth mother are different people? In my view, given the historical and traditional understanding of the reproductive process, the immediate background to this major piece of re-constructive legislation, and in particular, in light of the underlying motivation of the Act, i.e. the abolition of illegitimacy and its legal consequences, it cannot I think be inferred that within the contemplation of the legislature was a situation such as the present one. In view of these and other factors it would have required clear, precise and definitive language to have intended such a dramatic departure from the past understanding of the term mother, and in addition by only making a single and isolated provision to cover such rapidly advancing new scientific circumstances, the Act would have created a void, of enormous proportions. Moreover, if this submission be correct, it would have erased the possibility of the gestational mother ever, in any circumstances, being deemed to be a parent of the child to whom she gave birth. I cannot accept that such far reaching changes were so intended. Consequently despite the neutrality of the relevant provisions, I must conclude for the reasons above outlined, that the 1987 Act had not within its contemplation and therefore does not cover, a divisible situation such as that applying in this case.

79. A review of the legislative provisions in the UK does not assist as part of the interpretive process regarding the 1987 Act. Such provisions however, are of note as demonstrating that which is obvious, namely the highly complex, difficult and interacting interests which have to be considered, and at least dealt with, if not perhaps accommodated, within any established statutory framework. These interests will reflect, inter alia, the value at both a scientific and human level of the advent of assistance for those who otherwise would have to remain childless, the view which a particular national legislature takes, on the form of surrogacy which it permits and the conditions attaching thereto, the role of all contributors to the process involved and, in particular of course, the welfare of the resulting children. Indeed, the original English Act has been amended on three occasions since its introduction in 1969. These changes have become necessary as developments have continued to outrun the provisions then in being. Therefore, even if the Oireachtas intended to do no more than to deal with this subject as an emerging phenomena, one would still have expected to find in the legislation some identifiable expression in that regard. Consequently, I must conclude that as Mrs. R.’s situation was not envisaged by the 1987 Act, no declaration as to parentage was available to her under its provisions.

Mater Semper Certa Est:
80. The maxim, which in its abbreviated form gives rise to the subheading of this part of the judgment, is founded in Roman law (Justinian’s Corpus Juris Civilis); the great writers of age, Coke, Hale and Blackstone, made no mention of it as part of the common law in the classic texts published by each of these celebrated jurist. In its full form it reads “mater semper certa est, etiamsi vulgo conceperit, pater ver is est, quem nuptia demonstrant”. The surrogate in the instant case, translates this to mean “the mother is always known, even if she conceived out of wedlock, whereas the father is he whom the marriage indicates”. She says that on such basis the maxim does not support the widely held view as to its meaning. In her opinion the underlying assumption which the words convey, and thus the purpose of its use, relates solely to a situation where the genetic and gestational mother is one and the same person. This is supported by the translation as offered, where there is a reference only to conception and not to birth.

81. If, as everyone accepts that the maxim is founded in Roman law, this is the only conceivable meaning it could have. The possibility offered by science in the modern era had multiple centuries still to run. What has happened to bring about the existence of the children in this case, was indeed as the phrase goes, “unimagined and unimaginable” at that time. Whilst I doubt not that brilliance does what it can and genius what it must, nonetheless it is inconceivable that the maxim, either during its creation period or at any time thereafter, had any meaning, understanding or application, different to that which originally attached to it.

82. On the basis of what was only scientifically and humanly possible on the maternal side, it is entirely unsurprising that the maxim grew into a rule, which when called upon to do so, was readily applied by the courts. The fact of who was “mother” was irredeemably demonstrated by parturition. No third party could conceivably take issue with that inevitable truth or assert a contrary claim. As the event of birth is a matter of fact one would have thought that any presumption of motherhood to that end was also one of fact. Indeed I do not understand the necessity of having to position the fact of birth as, or to elevate it to, the station of a presumption, whether rebuttable or irrefutable, or whether one of fact or law: certainly to do so could have no added value in the traditional context. She who gave birth had also to be, she who provided the ovum, she within whom fertilisation took place and she who carried the foetus and gave birth to the child. As so understood, I am comfortable with the maxim if entirely indifferent to its status, whether being founded in law or in fact or being contestable or not. Of some significance however is to determine at what level in our legal system is mater semper part of Irish law, if at all.

83. I know of no Irish case which expressly says that it is part of the common law and none to that effect has been cited to us. The passage relied upon by the appellants in suggesting that it is, comes from the judgment of Lord Simon of Glaisdale at pp. 576 to 577 of the report in the Ampthill Peerage Case [1977] A.C. 547, where it is stated:

“I spoke, my Lords, of a judgment as to the status of a person having a particularly extensive effect. But there is one status for which Parliament, in the wisdom of experience, has made special provision. This is the status of legitimacy. Status means the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities. Such, for example, are the status of married person or of minority. Legitimacy is a status: it is the condition of belonging to a class in society the members of which are regarded as having been begotten in lawful matrimony by the men whom the law regards as their fathers. Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition. Fatherhood, by contrast, is a presumption.”

How forcefully one can rely upon this reference in support of the submission as made, remains in my view, highly problematic.

84. The only Irish case referred to in this regard is O’B. v. S., previously referred to (paras. 58 to 66 supra), wherein Walsh J. when dealing with an argument based on Marckx v. Belgium [1979] ECHR 330, commented as follows, on the mater semper maxim:

“In so far as it [the judgment in that case] deals with the question of the obligation to establish the relationship between the mother and the child which was necessary under Belgian law, that point does not arise in this jurisdiction as the maxim mater semper certa est did not apply in Belgian law but 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)

At the time under Belgian law no legal bond was created between the mother and her illegitimate child from the mere fact of birth but rather maternal affiliation had to be established by voluntary recognition or by court order.

85. In the first instance it must be noted that there is no mention whatsoever in the judgment of the common law being the lawful basis for the rule’s recognition within this jurisdiction, and secondly, that s. 1 of the 1880 Act simply imposes a duty on “qualified informants” to furnish appropriate details of a child’s birth and to sign the relevant register. Whether ss. 7 and 28 of the 1880 Act could have played any part in the statutory recognition of mater semper in Irish law must be seriously doubted. Section 7 dealt with the position of an illegitimate father in the context, inter alia, of being registered on the birth registry as such, while s. 28 required the register to be signed by the person who supplied the required particulars before such entry became evidence of the birth. Section 1 of the Act therefore could be the only possible basis justifying the comments of Walsh J., as that provision allowed any person, (not simply the parents), who was present at the birth or in whose house the birth took place, to also furnish the required particulars to the Registrar. However, it is certainly not clear to me how this section could be viewed in such a way. Finally, and of striking significance is the fact that the presumption is not referred to at all, either by name, form or substance, in any Act from 1880 to 2004, or for that matter since then.

86. Although the European Court of Human Rights (ECtHR) also refers to this maxim as applying in Irish law (Johnston v. Ireland (1986) 9 E.H.R.R. 203 and Kroon & Ors v. The Netherlands (1994) E.H.R.R. 263), it did so in recital form and very much as background to the case, assuming as it only could, its domestic existence. Quite evidently the ECtHR could not declare by its own authority what the common or statute law is within this jurisdiction.

87. Having referred to Dr. Maebh Harding’s Chapter, “Surrogacy in Ireland”, in K. Trimmings & P. Beaumont, International Surrogacy Arrangements: Legal Regulation at the International Level (2013, Hart Publications), in which she contends that the principle, mater semper never formed part of the common law, Clarke J., in his judgment in the instant case at para. 5.8 continues:-

“It follows that there is only sparse and limited authority for the proposition that the maxim mater semper ever formed part of the common law of Ireland.”

Whilst I would agree with these observations, I would with respect go further and at least conclude that no evidence has been produced which satisfies me that the maxim ever formed part of Irish law.

88. In any event the observations of Mr. Justice Walsh and certainly those of Lord Simon of Glaisdale, did no more than acknowledge the undoubted biological reality at the time, that motherhood was established by the fact of birth. Their endorsement of the maxim could in no sense be said to have elevated the presumption to an immutable rule of law either at the factual or legal level; much less that it should be applied for all time and for all purposes, irrespective of the medical and scientific changes which have taken place in the available methods of reproduction since then.

89. The State defendants in this case go much further than even the most favourable view of the decisions last mentioned permit: they seek to have the maxim treated at the highest level possible, namely that with constitutional status. They rely on Article 40.3.3o as the sole basis for this argument. This is rather surprising given the wording of the provision itself and in light of the decision of this Court in Roche v. Roche [2010] 2 I.R. 321, (“Roche v. Roche”). I have no doubt but that the appellants are fundamentally in error in this regard.

90. That Article of the Constitution reads:-

“40.3.3o “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Even without authority and disregarding the very public and acrimonious background to the 8th amendment of the Constitution which gave rise to this provision, it is perfectly clear that the focus of the sub-article was the protection of the foetus as it gestated in the womb of the pregnant mother, during the period before its life as an independent person, had been established. In describing the purpose of the provision as I have, I remain ever so conscious of the constitutional position of the mother, acknowledged in this Article but who also of course, as a life in being has the express benefit of Article 40.3.1o and Article 40.3.2° of the Constitution. In this regard I have always thought that the analysis of McCarthy J. in Attorney General v. X. & Ors [1992] 1 I.R. 1 deserved much more prominence than it seems to have achieved, at least to date.

91. This argument of the State was closed out by the decision in the case of Roche v. Roche where the issue was whether or not frozen embryos, then being held in a fertility clinic for potential future implantation, fell to be protected under that sub-article of the Constitution. The essential scope of that provision in my view was designed to and as a matter of law gave protection only:

(i) to the relationship between a foetus and the mother in whose womb it existed: this could not occur pre-implantation and had to end with delivery: physical connectivity was essential in this regard;

(ii) to preserving and protecting the growth and development of the foetus as well as the life of the mother: on rare occasions those interests might require to be balanced: such could only arise for consideration when associated in gestation; quite evidently, without both foetus and mother being integrated or at least linked, one could not adversely affect the other.

In essence, this summary reflects the judgments of Denham, Hardiman and Geoghegan JJ., in that case. It is therefore beyond clear that the meaning of the term “mother” in Article 40.3.3o is specific to that provision and ceases to have any application once the pregnancy ends. Consequently, I reject the submission of the appellants that mater semper has constitutional status in this jurisdiction.

92. In many respects this conversation is entirely otiose as in any event it seems to me, that mater semper simply has no application in a situation such as this, where the maternal contributors to the reproductive process are not one and the same person. The maxim, to use a neutral term, was never intended to cover such an eventuality. Where circumstances fall within its original contemplation, I am quite satisfied to see its continuing application, for the situation cannot be otherwise. But where as here, that is not the case, it must be disregarded. To do otherwise is to pursue a line of absurdity and a journey of medical and scientific denial. To disassociate the genetic donor from the child solely on the basis of mater semper is an exercise in delusional contradiction as it disowns her irrefutable contribution to the child’s creation and thus to its very existence.

The Constitutional Position:
93. In its analysis of the scientific evidence as same has been understood and applied to date, the High Court took the view that chromosomal DNA material has a deterministic influence on the uniqueness of the embryo, which carries into the inheritable characteristics upon which our individual sense of self and identity is based. Using the phrase “blood link” as a proxy for this, the learned judge considered that where competing claims exist as to who the mother is, that issue in circumstances such as these in this case, should be determined via this technical process.

94. As the importance or significance of DNA, in the context of assisted reproduction has not arisen for decision or even for discussion in our courts before this case, save for J.McD. v. P.L. & Ors [2010] 2 I.R. 199 (“J. McD.”) (Donor Sperm Case), reference might usefully be made to the position of natural fathers who are unmarried, as for legal purposes this group is differentiated quite distinctly from their married counterparts: the latter has the full protection of Articles 41 and 42 of the Constitution and of the legal measures taken by the State to implement its obligations thereunder. Reference may also be made to G. v. An Bord Uchtála [1980] I.R. 32, a case where an unmarried mother wished to withdraw her consent to adoption so as to regain custody of her child. Although a number of other cases have been cited such as Northern Area Health Board & Ors. v. An Bord Uchtála [2002] 4 I.R. 252, none of these add further to the jurisprudence which exists, and in any event almost all, have been decided in the context of their own individual facts.

95. Any discussion on the position of such persons however, can naturally form part of the wider relationship issues between parents and their children. Accordingly, in the first instance I will look at the natural mother and the natural father, both of whom are unmarried, and then to the position of a child born to them, in that unmarried state. The situation of a married couple and their child born in wedlock is markedly different, because of the availability, as I have previously said, of the added protection afforded by virtue of Articles 41 and 42 of the Constitution. I should also state that what immediately follows relates to unassisted reproduction, that is where there are but two parties involved in the ‘natural process’, a phrase which I use only for reference purposes.

96. The Constitution does not, as such, define who a “mother” is, but there are references to such a person in Article 40.3.3° and also to the term “mothers”, in Article 41.2.2° The latter section, having recognised the contribution which “woman” gives to society by her life within the home, pledges the State, by way of endeavour, to ensure that “mothers” should not be forced by economic necessity to work outside the home, to the neglect of their duties within it. It is not altogether clear what this provision means or why there should be such a sharp distinction between the terms used for the purpose of describing the State’s recognition of a ‘woman’s contribution’ on the one hand and its duty of endeavour towards “mothers” on the other. Moreover it should not be assumed that Article 41.2.2 is restricted to females who are married or to families so founded. See O’Flaherty J. in B.L. v. M.L. [1992] 2 I.R. 77 at p. 112. In any event it is not necessary to further explore these provisions in one’s search for the true meaning of the word “mother”, in the context of birth registration. In fact in light of the unsatisfactory wording of Article 41.2.2 and my clear views of Article 40.3.3° (paras 89 to 91 supra), it seems to me that at a constitutional level no definitive assistance is available as to the true meaning of the term “mother”, for the purposes of any issue in this case.

The Natural Mother:
97. The natural mother has in relation to her child, personal rights arising from Article 40.3 of the Constitution, which are based on the natural relationship which she has with her child, giving rise to an instinctive determination on her part to protect and sustain that child. Such a relationship also exists for the child, deriving, at least at the outset from its total dependency on its mother. The range of such maternal rights with corresponding obligations, includes the right to safeguard and care for the child, to have custody of it and to rear and be responsible for its upbringing. These rights give rise to responsibilities which mean, that the natural mother must provide as best she can and in accordance with her means for the welfare of her child, in the broadest possible understanding of these terms.

98. The State in pursuance of the guarantees contained in Article 40.3 of the Constitution, has enacted statutory provision in that regard, including the Guardianship of Infants Act 1964, as amended. Under s. 6 of the Act (inserted by s. 11 of the Status of Children Act, 1987), the natural mother shall alone be the guardian of her child, subject only to any order made in favour of the natural father (s. 6A of the Act inserted by s. 12 of the 1987 Act) or to such further or other order as therein provided for.

99. Such a mother however, even if living in a loving and enduring relationship with both child and father, is not considered as part of a family, for the purposes of Article 41 (The Family) or Article 42 (Education) of the Constitution, and neither are the other parties including the child. It seems highly probable therefore that the rights which she has in respect of her child, even those resting at constitutional level are not deserving of the same protection as is available to a married couple in similar circumstances. The rights under these Articles are referred to as being “inalienable and imprescriptible” and as being “antecedent and superior to all positive law”, whereas in Article 40.3, there is no such similar designation with terms such as, “as best as practicable” and “as best it may be”, being used instead. This means at least at a prima facie level, that Article 40.3 rights are neither inalienable or imprescriptable. They can therefore be transferred, lost, abandoned, surrendered or abdicated, and their enjoyment or exercise may be compromised. (I.O’T. v. B. at p.347). Consequently, it seems clear ex facie that the protection afforded by Articles 41 and 42 of the Constitution is at a higher level and is of greater value, than that existing at the Article 40 level.

The Natural Father:
100. The natural father has no natural rights to his child and the courts have never recognised any such rights: (The State (Nicolaou) v. An Bord Uchtála [1966] 1 I.R. 567 at p. 643) (“Nicolaou”); neither has he any constitutional rights (S.W. and J.K. v. V.W. & Anor [1990] 2 I.R. 437 at p. 447), (“S.W. and J.K. v. V.W.”). The position of such a father is regulated by the 1964 Act as amended by the 1987 Act. Prior to this amendment the natural father could make an application under s. 11 of the Act regarding custody and access issues: pursuant to s. 6A (inserted by s. 12 of the 1987 Act and as amended s. 6 of the Children Act 1997) such a father could thereafter in respect of his child, also apply for guardianship. In so interpreting these provisions, the Supreme Court in S.W. and J.K. v. V.W. rejected a view offered by the High Court (Barron J.), that by reason of the 1987 Act a natural father who otherwise is a fit person in this regard, should not be denied guardianship unless there are circumstances or other good reason involving welfare considerations, which required that he should not be so appointed. That High Court decision, as interpreted by the majority of the Court, presupposed that the father had a right to guardianship defeasible only in the circumstances as therein mentioned. Finlay C.J., with whom three other judges agreed made it clear that the sole purpose of s. 6A was to confer a “right to apply”, for such an order: this was the only “right” so given: nothing more. This description of what the section permitted, which has ever since being so repeated in this way, is a description which I have always struggled to understand. In my view, if such a term was ever appropriate, it is no longer so, as what it conveys for those affected is distressingly dismissive of the intensity of nature’s feeling, which a great number of Irish fathers, also have for their child.

The Child:
101. Every child, born out of wedlock must, as a human person and by virtue of his own innate being, be held equal before the law (Article 40.1). Such a child, like every other person, has personal rights guaranteed to him and her, under Article 40.3. In addition, at constitutional level, he has in like manner to children born in wedlock, the “natural and imprescriptible rights”, to religious and moral, intellectual, physical and social education, as referred to in Article 42.5 and also the further right, again like all other children, to free primary education as referred to in Article 42.4. (In Re M. (An Infant) [1946] 1 I.R. 334; Nicolaou and G. v. An Bord Uchtála). How these particular rights come to vest in such child is probably better explained by relying on Article 40.3, rather than by some obscure creative means in an attempt to apply directly the provisions in question. Furthermore, in addition to those mentioned there may well be other “natural and imprescriptable rights” which a child has. Finally, in this context the decision of the High Court in M. v. M. (Unreported, High Court, Murphy J., 2nd December 1982), which restricted by narrow description the rights which an illegitimate child shared with his legitimate brother, must now be reviewed in light of the 1987 Act and the more recent case law in this area.

102. The range of such rights includes the right to be fed and to live, to be sheltered, safeguarded and cared for, to be reared and educated, to have the opportunity of working and of realising, in all essential respects his or her full personality and the right to dignity as an equal human being. In addition, there is the right to have decisions regarding issues such as guardianship, custody and access, taken where the first and paramount consideration is the child’s welfare (F.N. & E.B. v. C.O. & Ors [2004] 4 I.R. 311); or as sometimes described the personal right to have his or her welfare fully protected (D.G. v. The Eastern Health Board & Anor [1997] 3 I.R. 511).

103. Just as the mother has rights in respect of the child which arise out of her natural relationship with it, so also it can be said that such relationship is the basis of certain rights of the child. This basis for such rights should not be confused with the Constitution itself which also is the foundation for several other personal and property rights, of such a child.

104. At a statutory level many of the provisions of the 1964 Act, and those of the 1987 Act apply for the benefit of the child as well as several other statutory provisions in a variety of different codes; which however it is not necessary to further explore in this judgment.

105. In addition to the rights which attach to the natural mother and to her illegitimate child, a child of a married couple and his parents, are also entitled to avail of the rights provided for by Articles 41 and 42 of the Constitution. Furthermore in significant measure, any person, who is the subject of a valid adoption order and/or who has been legitimated, also enjoys such rights.

106. Apart from the level by which Articles 41 and 42 of the Constitution afford protection (para. 99 supra), the significance of these provisions also becomes clear where there is a contest between the rights of parents to guardianship and custody on the one hand and a competing assertion of some third party on the other, such as for example, prospective adopters. In this situation the child’s right to enjoy the protection given by these Articles must be vindicated. Neither the State (through legislation) or the courts (through decision - In Re J.H. (An Infant) [1985] 1 I.R. 375 at 395) can usurp this right save in the “exceptional” circumstances provided for in Article 42.5. Therefore there is a constitutional presumption that a child’s welfare is to be found within the family unless by compelling evidence such cannot be achieved within that unit or otherwise by reason of Article 42.5 considerations. In effect the child of a married couple has the right to be educated by his parents, inter alia in religious, moral, intellectual, physical and social instruction and also to belong to that family; which rights are to be regarded as predominant in his/her welfare. On the other hand where the dispute is between both parents, on matters of guardianship, custody or access, then the best welfare test will apply. (In Re J.H. (An Infant) [1985] 1 I.R. 375).

The Blood Link:
107. It is not suggested by any party to these proceedings, that what is variously described as the “blood link”, the “biological link” or the “natural link”, is not of significance in and to a parent’s relationship with his/her child and vice versa. Its importance however at a scientific level and more crucially at a legal level, has never had to be considered by a court in this jurisdiction before, certainly not in any circumstances comparable to those of the instant case. It would therefore be useful to firstly look as to how this link has been viewed in other situations.

108. At the outset of what I am about to say, it is important to keep in mind that in some cases reference to the blood link has been both instructive and informative, in particular where it has been addressed with a specific purpose in mind: on other occasions mention of it has been very much incidental and at a high level of generality.

109. Whilst the issue of genetic connectivity has most frequently arisen in disputes involving natural fathers; it is also asserted by the respondents that the courts have recognised to an important degree, this genetic link in cases involving mother and child and vice versa,. First therefore a brief reference to some such cases.

110. G. v. An Bord Uchtála, which has already been referred to, was a case where an unmarried mother wished to withdraw her consent to an adoption and to regain custody of her daughter. In separate judgments O’Higgins C.J. and Walsh J. both held that the personal rights of the applicant mother derived from ‘the fact of motherhood and from nature itself’. It is claimed by the respondents in the instant case that the underlying link to nature is a reference to the process of conception, in which the common denominator is genetics and which in turn, forms the catalyst for pregnancy. This interpretation must follow, they say, given that the core issue was whether the child should be with her natural mother or with the prospective adoptive parents. The phrase spoken of in G. v. An Bord Uchtála, can only be understood in such circumstances as referring to the blood link. It is further said that in a true sense the real contest in that case was between rival mothers with the only, but very definite point of distinction, being that link.

111. In the same case, G. v. An Bord Uchtála, Kenny J. was the only judge to mention by name, the blood link. He did so in determining whether the welfare of the child would be best served by remaining with the potential adopters or by being returned to her natural mother. At p. 98 of the report he said:

“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.”

Whilst there is no doubt but that the learned judge meant no offence by his reference to adoptive parents being unable to establish an affinity with, or develop a deep sense of love for the child they wished to adopt, a view which in any event I would strongly disagree with, nonetheless the real importance of what he intended to highlight, was the emotional and instinctive bond which in the vast majority of cases immediately arise from the fact of motherhood. In effect, he was saying exactly the same as his fellow colleagues had, in their respective judgments.

112. This relationship between mother and child, or more accurately in the presenting circumstances between child and mother, gave rise to a different issue in I.O’T. v. B, which in fact consisted of two separate but related cases. In that case the first applicant sought a declaration of parentage under s. 35 of the 1987 Act but as she did not know the identity of the person in issue, her natural mother, she sought discovery of documents which might reveal who she was. Her entire proceedings were dismissed on the basis that as a pre-condition for obtaining such a declaration, it was necessary to name the putative parent on the application notice.

113. The second applicant in I. O’T v. B, did not have this difficulty. At p. 348 of the report Hamilton C.J., in recognising the existence of an unenumerated right to know the identity of one’s natural mother, said:

“The right to know the identity of one's natural mother is a basic right flowing from the natural and special relationship which exists between a mother and her child, which relationship is clearly acknowledged in the passages quoted from the judgments in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 and in G. v. An Bord Uchtála [1980] I.R. 32.

The existence of such right is not dependent on the obligation to protect the child’s right to bodily integrity or such rights as the child might enjoy in relation to the property of his or her natural mother but stems directly from the aforesaid relationship.”

The Chief Justice went on to hold that such right was not an absolute one and had to be balanced against the mother’s right to privacy. As the trial court had not dealt with that issue, the matter was returned to the Circuit Court for that purpose from which the original case had been stated.

114. Unlike in I.O’T. v. B., there is nothing on the facts of the instant case to call into issue the children’s right to dignity or their right to realise the full extent of their individual personalities. As the passage from the judgment indicates, it was submitted in I.O’T. v. B. that the right to know one’s natural parent was an essential element in the development of one’s personality and the exploitation of one’s dignity. Keane J. thought little of the point describing it as “a grave overstatement”, citing situations of personal tragedies and widespread social upheavals by reason of which millions of people have grown fully into adulthood, without ever knowing who their parents were. (p. 371). Undoubtedly the latter point may be correct. It may also be entirely true that for a great number of people, the identity of their natural parents is not or is no longer a focus of their interest or even their curiosity. But for others the need to know is there and its intensity and urgency can range from the casual to the possessed: it can be all consuming and become a lifetime’s obsession. For those, who undertake this search for identity, the desire to find out must be great and if unfulfilled one could readily see how such individuals, as human persons, would be much the less for it. The need to know for those who particularly feel it, is well recognised in the literature and is witnessed first hand by those Agencies who offer help to this end. It should not be understated or lightly dismissed when present.

115. In S.W. & J.K. v. V.W., a case involving an unmarried father, the Supreme Court, whilst refusing to acknowledge the existence of any constitutional right to guardianship for such person, went on however to say that the blood link “may give rise to rights of interest or concerns”, which would have to be determined on a case by case basis. At one end of the spectrum was the existence, without more, of such a link: at the other end was the father who played an integral role in the life of his child, quite frequently in what could only be described as a family unit even if not so recognised by the Constitution. Such circumstances may confer on the father very considerable “rights and interests” indeed. At p. 447 of the report Finlay C.J. said:

“This conclusion [no constitutional right to guardianship] does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married.

The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case.

The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed.”

116. Very similar language was used in W.O’R. v. E.H. & Anor. [1996] 2 I.R. 248. At p. 269, Hamilton C.J. stated that the blood link, in the absence of other factors beneficial to the child, is of small weight and would not be a determining factor in any application under the 1964 Act. But he went on to confirm that:

“…where the children are born as a result of a stable and established relationship and nurtured at the commencement of life by father and mother in a de facto family, as opposed to a constitutional family, then the natural father, on application to the Court under s. 6A of the Guardianship of Infants Act, 1964, has extensive rights of interest and concern.” (pp. 269 and 270)

In so saying he was very much echoing the phraseology used in S.W. and J.K. v. V.W. See also pp. 271 to 273 where Denham J. expressed similar views.

117. As can be seen from the law reports, the Court has looked at this link and its legal consequences in terms of the relationship between a natural father and his child (F.N. & E.B. v. C.O. & Ors), a good deal more frequently than in the case of the natural mother and her child (G. v. An Bord Uchtála). Be that as it may, Nicolaou, S.W. & J.W. v. V.W. and W O’R v. E.H. together with G. v. An Bord Uchtála, can now be considered as having set out what the main legal principles are in relation to both situations. The decision of Walsh J. in Nicolaou has largely remained the declared position in so far as it covers this matter, but the forceful criticism of the judgment by Barrington J. in W. O’R. v. E.H. is worthy of consideration. In any event as previously stated, the fact of fathering a child, in and of itself, confers on the unmarried father nothing more than an entitlement to avail of a statutory provision to make a court application (but see para. 128 infra). However, depending on circumstances, such a father on application made, may have every entitlement to obtain judicial recognition of a broad range of intimate rights in relation to his child. In fact in principle, I see no reason why such rights could not be, for all practical purposes, coterminous with those vested in a father who is married to the child’s mother. Finally, to state the obvious, the male contribution to the reproductive process can only be made by a genetic donor.

118. In the matter of N. v. Health Service Executive [2006] 4 I.R. 374 (the Baby Ann case) there is a reference to the blood link in at least two of the judgments delivered by this Court. In that case the natural mother withdrew her consent to have her child adopted after signing the final consent form but before the adoption order was made. Shortly thereafter she and the natural father were married and immediately had the birth of their child re-registered. Baby Ann was therefore now legitimised and was part of a family founded on marriage. They sought to regain custody of the child, who by then was a happy and contented two year old and who, having been in their care for most of this period, had formed a close attachment to the prospective adoptive parents. The issue thus arising was as between the child’s biological parents and the proposed adopters.

119. Whilst the case raised a number of important issues, it becomes relevant at this point only for the court’s references to the blood link. At pp. 547 and 548 of the report, Geoghegan J. had this to say on the point:

“209 … The importance of family and marriage and quite frankly also the biological link should not be minimised. It is common knowledge that in the case of so many adoptions, the adopted children at some stage want to see their real parents. Many people, I suspect, would consider that there is an appreciable advantage for a child to be reared within a natural family and having real parents and real aunts and uncles.

210 In case it should be thought in some circles that the attachment of importance to the biological link is an outdated concept and is rooted merely in some conservative Irish view of the family, it is of considerable interest that this same concept has been reiterated by the House of Lords in the recent case of In re G. (Children) [2006] UKHL 43, [2006] 1 W.L.R. 2305.”

120. Fennelly J. also gave much consideration to this matter:

“312 I turn then to the central importance of the family, founded by marriage and the natural blood links and relationship between Ann and the applicants. I am in entire agreement with the judgments of Hardiman and Geoghegan JJ. on these issues. I can, therefore, state my own views briefly.

313 The applicants constitute with Ann a family. This is no mere constitutional shibboleth. Article 41 speaks of the rights of the family being "antecedent and superior to all positive law". In my view, that is no more than the statement of the simple facts of life. People of opposite sexes meet, marry, procreate and raise children. Prevailing trends towards the recognition of non-marital and even same sex relationships are invoked from time to time with a view to expanding the legal definition of the family. None of that arises in the present case. Even if it should become necessary to recognise the family relationships of the increasing number of couples who raise children outside marriage, such a development would be based in most cases on the natural blood bond. It would in no way undermine, but would tend to emphasise the centrality of the mutual rights and obligations of the natural parents and their children.

314 One does not have to seek far to find that courts widely separated in time and place have accepted the need to recognise and give weight to what has been variously characterised as the blood, or natural, or biological link between parent and child. In In re O'Hara [1900] 2 I.R. 232 at p. 239, Lord Ashbourne L.C. declared:-

‘I would never, except for the strongest reasons, deprive the mother of the duty and the right to direct, control, and educate her child under twelve years of age.’
Fitzgibbon L.J., at p. 240 expressed similar sentiments:-
‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.’
315 As recently as July of this year, Baroness Hale of Richmond, in speaking for a unanimous House of Lords in In re G. (Children) [2006] UKHL 43, [2006] 1 W.L.R. 2305, cited the latter statement among a number of other authorities representing a statement of the principle of paramountcy of the welfare of the child prior to modern English legislation. With due deference to the very different circumstances of a case concerning the custody of a child born to one partner in a lesbian couple, a case as far removed from the present as it is possible to imagine, it is instructive to note the importance attached to the natural relationship. There is no legal presumption, in modern English law, in favour of natural parents. Baroness Hale identified the elements of genetic, gestational and social and psychological parenthood and continued at para. 36, p. 2316:-
‘in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique.’
In the curial part of her speech, she stated:-
‘the fact that C.G. is the natural mother of these children in every sense of that term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future.’
Lord Nicholls of Birkenhead, concurring, stated at para. 2, p. 2307:-
‘In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason. Where such a reason exists the judge should spell this out explicitly.’
The House of Lords reversed the decision of the Court of Appeal and awarded custody.

316 The only reason for these observations is to emphasis that the applicants constitute a family with Ann regardless of the definition of family which is adopted. I am happy to adopt the references to the several constitutional references to the family and the rights of its members which are contained in the judgments of Hardiman and Geoghegan JJ. Like them, I believe that the decision of this court in In re J.H. (inf.) [1985] I.R. 375, is central and dispositive of the issues in the present case.”

121. As is evident from these passages, the decision in In Re G. (Children) [2006] 1 W.L.R. 2306 featured prominently in the analysis conducted by Fennelly J. Accordingly, it is therefore worthwhile to add the following about that case. The relationship which had broken down was a lesbian one, with each woman looking for custody: one of the two was the biological mother of the child. Baroness Hale, who delivered the main judgment, approved of two decisions of the Full Court of the Family Court of Australia (Rice v. Miller [1993] F.L.C. 92 – 415 and In Re Evelyn [1998] F.L.C. 92 – 807), which held that the biological link was an important factor in the welfare of the child. Likewise, she was of the view that the fact that one of parents was a natural mother was an important and significant factor in welfare matters, a conclusion which she described as being based on a principle of “universal application”. Lord Nicholls of Birkenhead decried “any tendency to diminish the significance” (para. 2) of the biological input when welfare considerations are in issue. Therefore, the blood link was a matter of high value in this context.

122. The final case which I wish to refer to is J.McD. v. P.L. & Ors [2010] 2 I.R. 199. The respondents, a lesbian couple who were in a long term relationship, approached the applicant seeking his agreement to donate sperm to the first named respondent who hoped to conceive as a result. An agreement was entered into which allowed any child so born to know the identity of the sperm donor who, whilst having no parental input would have, at the discretion of the couple, access to the child in the role of a “favourite uncle”. From the resulting process a male child was born in May 2006.

123. Whilst the evidence presented a sharply conflicting version of what in fact the parties relationship turned out to be over the following number of months, it is clear that the respondents became increasingly concerned with what they felt, was an excessive and most unwelcome intrusion into their family life by the applicant, whose behaviour much more resembled that of a “father” than as envisaged, at least by them, than that of a “favourite uncle”. Matters came to a head when the couple decided to move to Australia to be closer to the mother’s family after her mother suddenly became unwell. That prompted an application by the father seeking an order under s. 6A of the 1964 Act appointing him a guardian of the child.

124. Before the substantive case came on for hearing, the High Court and on appeal this Court, made a number of interlocutory orders, the effect of which was to permit the father to have limited access to the child on an interim basis: this access took place without incident.

125. In a lengthy and careful judgment delivered in April 2008, Hedigan J. refused all relief, holding that the natural mother had a right to custody under Article 40.3 of the Constitution and that as such, the Court should presume that she will act in the best interests of the child. Furthermore, the learned judge, resting his decision on Article 8 of the Convention held that as a heterosexual couple could be regarded as a de facto family, if certain conditions were satisfied, he saw no reason why the respondents, whose relationship otherwise satisfied the conditionality of the Strasbourg Court, should not likewise be so considered. On appeal the father was granted access but not guardianship rights to the child, the extent of which were to be determined in accordance with the provisions of the 1964 Act. Further, this Court unanimously declared that a de facto family, as distinct from one founded on marriage, was an institution unknown to Irish law and that in any event contrary to what the High Court had stated, the European Court of Human Rights had found that same sex relationships did not fall within the scope of Article 8 of the Convention.

126. In her judgment Denham J. was satisfied that the correct test to be applied was that as outlined in S.W. and J.K. v. V.W. On such basis the applicant was a father to whom s. 6A of the 1964 Act applied; in her view however, the High Court had not given sufficient weight to this fact. Geoghegan J. felt that S.W. and J.K. v. V.W. and W.O’R. v. E.H., when read together explained the legal position of an unmarried father and laid down the principles which should be applied when the provisions of the 1964 Act are invoked by him. As part of his judgment the learned judge referred to a particular passage from S.W. and J.K. v. V.W. (para. 115 supra), which in his view might have been phrased in a somewhat “polarised” way. The positioning by Finlay C.J. of the father at the lowest end of the spectrum where conception had resulted from casual intercourse, should not in his view be read too literally. The learned judge felt and in my view quite correctly so, that a great number of men who find themselves in that situation react, at least as far as the child is concerned, as a responsible, caring and participating father, should. As the circumstances in which a child is born out of wedlock and the father’s response to such an event are so infinite and varied, it seems to be that if generalisations have to be made, they should strictly be regarded as such and nothing more.

127. Geoghegan J. also referred to what he described as the “somewhat enigmatic” phrase firstly used in S.W. and J.K. v. V.W. (para. 115 supra) and repeated by Hamilton C.J. in W.O’R. v. E.H, which was to the effect that there may exist “rights of interest or concerns arising from the blood link between father and child” (para. 116 supra). The learned judge was of the view that the meaning which Finlay C.J. in S.W. and J.K. v. V.W. intended this phrase to have, was that such a link of itself may give rise to a limited number of natural rights, “of a kind”: but which rights would not have constitutional recognition.

128. I must confess that for my part I have never read the passage in which the phrase was firstly used, and even less so when the context of its endorsement in W.O’R. v. E.H. is accounted for, in this way. I take the view that what was being suggested was that the “mere” right of the natural father to apply, was being enhanced at least to some degree. In fact I am satisfied that the intended purpose of the passages in both cases was to acknowledge the obvious, namely that multiple unit groups of society, comprising of man and woman of all ages, origins and beliefs who live together and raise children do so, in a manner and to a degree indistinguishable from their married counterparts: and that in such situations the unmarried father is deserving of greater legal recognition than simply having a “mere” right to apply. Surely instead of disowning such fathers, society has a deep rooted and vital interest in recognising, facilitating and encouraging their role within the family unit. It follows from this view that the assessment necessary is not approached solely by the welfare considerations but is also driven from the perspective of the father’s position. If it was simply the former, the making of these observations in the first place would have been entirely unnecessary.

129. Fennelly J. in J.McD. v. P.L. & Ors, also dealt with this issue: (paras. 299 to 304):

“[299] … …
3. The strength of the father's case [unmarried], which is described in the three judgments from which I have quoted as consisting of "rights of interests or concern," will depend on an assessment of the entirety of the circumstances, of which the blood link is one element, whose importance will also vary with the circumstances; in some situations it will be of “small weigh”;

4. both Hamilton C.J. and Denham J. spoke of de facto families in the context of an application for guardianship pursuant to the Act of 1964 and only in the sense of a natural father living with his child and unmarried partner in an ostensible family unit; a de facto family does not exist in law independent of the statutory context of an application for guardianship;

5. The father's rights, i.e., right to apply, if any, are in all cases subordinate to the best interests of the child.

[300] The notion of "rights of interest or concern" has not been further analysed. In its context, it is an expression designed to lay emphasis on the interests of the child and not to confer any distinct rights on the father.

[301] The blood link is an unavoidable biological fact. Equally, it exists outside marriage in situations as diverse as human life itself. In our changing society, many children are born into apparently normal and stable family situations, though the parents have never married. At the other extreme, a child may be the fruit of an act of casual lust or commerce or, worse, an act of violence. Advances in science have made it possible for conception and birth to take place even without any act of human intercourse. It is both right and natural to have particular regard to the context of conception, birth and subsequent family links.

[302] Although it is not suggested, in the present case, that the applicant is any less the biological father of the child by reason of being a sperm donor, he has, as a non-marital father, no constitutional right to guardianship or custody. The principle is that he has the legal right to apply and to have his application considered. To the extent that Finlay C.J. and Denham J. postulated a scale for assessment of "rights of interests or concern", it seems likely that the sperm donor would be placed quite low, certainly by comparison with the natural father in a long term relationship approximating to a family.

[303] The particular context of a sperm donor has not previously come before our courts, though we were referred to a Scottish case where a sheriff held a sperm donor to have parental rights. Murphy J. referred to the matter in his judgment in W.O'R. v. E.H. (Guardianship) [1996] 2 I.R. 248, at p. 286, as support for the argument against recognition of the mere fact of fatherhood as conferring constitutional rights. In my view, the matter must be viewed only by reference to the interests of the child.

[304] The blood link, as a matter of almost universal experience, exerts a powerful influence on people. The applicant, in the present case, stands as proof that participation in the limited role of sperm donor under the terms of a restrictive agreement does not prevent the development of unforeseen but powerful paternal instincts. Dr. Byrne acknowledged that it would be "beyond what a man in that circumstance would be capable of" for him not to wish to be involved. More importantly, from the point of view of the child, the psychiatrists were in agreement that a child should normally have knowledge, as part of the formation of his or her identity, of both parents, in the absence compelling reasons to the contrary. There is natural human curiosity about parentage. Scientific advances have made us aware that our unique genetic make up derives from two independent but equally unique sources of genetic material. That is the aspect of the welfare of the child which arises.”

130. After this fairly extensive review of the case law, the immediate and obvious question which must be asked is whether, and if so to what degree, these decisions determine the issues in this case or influence their outcome. Leaving aside the cases where the asserted rights were being agitated by the natural father and also the case of J.McD. v. P.L. & Ors, all other decisions, irrespective of the views expressed on the importance of the blood link or on the constitutional or legal consequences which might follow for either mother or child, were considering the issue in the context of a single female being involved: where such person was solely responsible for the production of the ovum, was the person within whose body that was fertilised, was the person who carried the embryo and the person who gave birth to the child. Even the facts of In Re G. (Children) fall squarely within this description. The courts therefore, have never been called upon to view a divisible situation as exists in the present case.

131. Consequently, apart from the observations of Murphy J. in W.O'R. v. E.H., who anticipated, but offered no opinion, on some of the difficulties which would arise in cases of assisted reproduction, and the foresight of Baron J., in I.O’T. v. B., in warning that “the need to keep the door open [regarding the outcome of the issues in that case] is based on genetics.” (p. 381), there is no guidance within the available authorities as to how within our constitutional or legal structure the facts of this case should be positioned. Therefore, none of these decisions are determinative of the issue: neither are those involving natural fathers, with whom Mr. J. McD. can be closely if not entirely associated. The explanation for this deficit is easy to understand and is most straightforward: the facts of this case are novel, certainly in legal terms if not in many other ways as well. Whilst this situation will inevitably change, the instant case however, as presenting through the evidence, must be decided upon.

132. To have discovered at such a tender age, that she had been born with such a profound abnormality or disability must have been the most traumatic event ever experienced by Mrs. R. Because of its consequences she would have become destined, if she had lived in another generation, to end her life childless. Many thousands of people for multiple and diverse reasons find themselves in the same or in a similar situation. The inability to even contemplate the possibility of having children would be forever with them. For those persons, who constitute a very small percentage of the population but who nonetheless are sizeable in number, the discovery of IVF even at the initial stages of its evolution, must have instilled a great sense of hope and expectation within them. It could rightfully be looked upon as potentially life changing. As matters progressed at an ever increasing pace, the impossible became possible. No longer would such individuals be destined to remain without child. Even siblings might be thought of, as a possibility.

133. The continuing development of this and other related sciences (IVF - for short -), which are now fully integrated into the mainstream of such disciplines, has offered so many, not simply the hope but also the realistic opportunity of overcoming what disease, disability and malformation have inflicted upon them.

134. As IVF has continued to develop, in its discovery, technique and application, the variety of abnormalities that can be dealt with, and thus the range of people that can be helped, is ever increasing and ever expanding. Its advent, is or surely will become recognised as one of the great events of our times. As stated, the areas in which IVF can intervene are multiple, but are almost always complex and vary greatly in detail. In many cases even with such help and assistance, the individual in question may still not be able to participate in the reproductive process at any level or else if she can, only do so in a way quite different to a person who is without such disease, disability or malformation. But what the treatment seeks to do, is to permit to the fullest possible extent, that person’s participation in the process, facilitated by the relieving or even curative effect which it has on the underlying disorder.

135. Prior to such discovery, the natural form of reproduction was the only form known to man. Legal concepts, principles and mechanisms had been developed and were in place to deal with and resolve any difficulty or dispute which emerged therefrom. Such regimes of course required reassessment from time to time, as society changed. But once the basic structure of human creation remained as it was, solutions could be found within established norms, which society was both familiar with and comfortable in their use.

136. This position changed in quite a dramatic way when IVF was discovered and became available. For the vast majority of people the resulting medical and scientific advances, were there to be wondered at and admired. But although not directly affected by such discovery, the issues raised by IVF in its many forms were such, so as to challenge society as a whole in respect of many deep rooted and long cherished values.

137. The issues arising from this process appear in various forms, depending in some respect on what type of reproductive problem is involved, and what is the preferred treatment to deal with it. Such difficulties, obviously are too numerous to mention even by reference solely to the female gender. As above stated, surrogacy intervention was necessary in this case so as to respond to Mrs. R.’s condition, which meant that she could not, in a complete sense, conceive, carry the child or give birth to it. Without a uterus that element of the process was denied to her. However, she has otherwise contributed to the fullest extent possible, namely in being the sole provider on the maternal side of the genetic input into the creation of her children. She has thus done everything which the most up to date and available treatment permits her to do in the reproductive process.

138. As one has moved into, indeed as one is now firmly entrenched within a new medical and scientific world, a world affecting in a most profound way those who engage with it, it becomes necessary to recognise and respond to the highly significant and complex moral, social, ethical and legal issues which arise, impacting as they do not only on such persons but also on society as a whole; and in a way which questions its historical, traditional and cultural views and values. This new scientific and medical world is certainly timeless if not limitless.

139. Like all such profound innovations however, the productive utility of IVF must be consistent with and accommodate the common good. Regulation would appear to be the obvious answer: not only to cover matters resulting from new discoveries and the propriety of treatment and its use, but also to deal with the consequences which follow both from its successes and failures. There already exists a most extensive report from the Commission on Assisted Human Reproduction which is now almost a decade old. As if the complexities of this situation needed any demonstration, it can immediately be seen, from just one recommendation of the majority how difficult this area is: the recommendation was to the effect “that the child born through surrogacy should be presumed to be that of the commissioning couple”, whereas in the United Kingdom, by force of statutory provision, the opposite view is helpful. Whatever its contours might be, such regulation would at least create a legal framework and bring about some degree of certainty, by reference to which those involved with the process, could ascertain their position.

140. The arrangement put in place by the parties and their individual participation in it, is not unlawful either by virtue of the civil or criminal law in this jurisdiction. On first principles therefore, one can thus say that it is lawful on the basis of what is not prohibited by the law is permitted by the law. That however begs a serious question, which is whether if one party sought to enforce its terms would the court decline to so do either on public policy grounds or otherwise. That issue does not call for resolution in this case as neither party as such, seeks to legally validate the agreement. Incidentally however, the tentative view to date is inclined towards non-recognition.

141. The agreement however is not devoid of importance; irrespective of whatever legal status it might have. It is quite clear that in a spirit of full cooperation, knowledge and consent, the parties in this case committed themselves to regulate each aspect of the arrangement and the consequences which would follow a successful outcome, both as to matters of fact and if the law permitted, as to matters of law. It is at least therefore indicative of the views of each party which they individually declared at the outset and which they have faithfully implemented to date. By mutuality of accord Mrs. R. was to be accredited with the status of “mother” to the exclusion of the notice party, who also renounced any and all rights to the children, howsoever arising. In addition, Mrs. R. and her husband were to be and were to act exclusively, as the parents of the children. Moreover, the consequences in respect of the children which would follow from that status, if legally recognised, were put in place. The husband of the notice party has confirmed by statutory declaration that he is not the father of the children. Therefore no complications arise in that regard. In an area otherwise unregulated by law, it is difficult to see what more the commissioning parents could have done if Mrs. R. and her husband were ever to have a chance of becoming what they would regard as natural parents, even if partly dependent on IVF for that purpose.

142. Historically, where the natural reproductive process was involved, it might be fitting to ask the question “who is one’s mother?” However even then, to meaningfully engage with the question there must be a context. The answer might be quite different if the inquiry was framed in such a way as to focus on the person who had provided the essentials, of the common meaning of the phrase “motherhood”. Likewise with regard to the questions “who is one’s father?”, or who has looked after the child like a father should.

143. In this era of assisted human reproduction there are several feasible answers to these questions. In the recent case of In Re G. (Children) [2006] 1 W.L.R. 2305, which has previously been mentioned, Baroness Hale ventured the following discussion on these topics. At p. 2316 of the report it is stated:

“33. There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child’s welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is “his” child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child: see, for example, the psychiatric evidence in In re C (MA) (An Infant) [1966] I WLR 646. For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.

34. The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child’s mother, whereas the mother who provided the eggs is not: the 1990Act, section 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.

35. The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child’s needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase “psychological parent” gained most currency from the influential work of Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:

‘A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child’s psychological needs for a parent, as well as the child’s physical needs. The psychological parent may be a biological, adoptive, foster or common law parent.’
36. Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much close to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.”

I respectfully agree and could add several other candidates who would fit comfortably into the social and psychological role.

144. In considering the constitutional issue it is in my view of the first importance to avoid, if at all possible, a generalised discussion, of the problems which are capable of arising from the use of assistance in the reproductive process. In an area totally unchartered, which involves a diversity of inter-related matters, some of which may simply have to yield to others, it is preferable in my opinion to take a narrow approach and concentrate on the facts of this case. There is another reason for this, which becomes evident when I suggest how this judgment should be responded to (para. 153 infra).

145. What is essential therefore to ask is whether, against the background of her condition, the medical and scientific evidence given in the High Court and the judge’s finding of fact thereon, the deliberate and decisive decision of Mrs. R. and her husband to avail of this treatment, her genetic contribution to fertilisation, to the structure giving rise to the placenta and to the inheritable characteristics which the children inherit from her, should this Court recognise the existence of rights at a constitutional level arising out of such relationship between Mrs. R and her children, between the children and Mrs. R and between both parents and the children?

146. The answer from Mrs. R’s point of view is not easily arrived at. If she was the only contributor on the female side the position would be quite straightforward, even if unmarried. Searching for a solution by analogy with the law as it applies to paternal actors is apt to confuse rather than to elucidate. The situation of the male who contributes in natural form, whether married to the child’s mother or not, is again well declared in the case law. Where he is a donor by artificial means, his position and that of the child depends on whether he is or is not married to the child’s mother. Even the case of In Re G. (Children) is of no direct assistance as in that case the biological mother was also the gestational mother. So, whilst the blood link has featured, albeit to different degrees in these cases, none of them have a context quite like that of the instant case. Therefore in my view, I think that the constitutional issue must be addressed at the level of principle.

147. For the purpose of this discussion I am disregarding for the moment, the rearing, nurturing and upbringing role played by Mr. and Mrs. R. in respect of the children; I am simply referring to Mrs. R’s part in the procreative process. The choice of IVF was forced upon her by abnormality, which in itself potentially raises serious issues of equality under Article 40.1. The decision to engage, as stated, was pre-planned and deliberate, in the full knowledge of what was involved and what the hoped for consequences might be. She provided the ovum which, when matched and thereafter fertilised with the sperm of her husband, gave rise to the pregnancy. That process could never have been initiated without her contribution. There would have been no zygote and no embryo without her. She participated in every way that was possible for her and to the full extent of her capacity. Her involvement could not have been more.

148. Of course, it is true also to say that the notice party played a major role in the growth and development of the embryo, to the point of producing live and healthy children. That is a contribution which I am not overlooking and in my view is one which cannot be overlooked. In concentrating on Mrs. R., I am not to be taken as suggesting that the surrogate’s role was insubstantial or insignificant: far from it. As one of the medical witnesses said, the gestational environmental is “beyond essential” in this particular process. But on the facts of this case any rights which she may have do not fall for consideration. In some future case these may undoubtedly arise but not so in this one. Her role is one which should be acknowledged and that I do.

149. The question of intention, evidenced by such multiple acts of deliberation on the part of Mr. and Mrs. R., is a significant factor in whether their situation is capable of constitutional recognition. In my view, it is.

150. The relationship of Mrs. R. and the children and the children’s relationship with Mrs. R., in the context of the reproductive process involved in their conception, is justly deserving of recognition at constitutional level. From her point of view she is the sole provider of the genetic material on the maternal side. That contribution is singular in its significance: it is what gives rise to our very being: it is the basis of who we are: it directs our individual uniqueness and is indestructibly engrained in our characteristics and those which we pass on to our offspring, by procreation. The High Court in my view was perfectly justified on the evidence in reaching the conclusion which I have paraphrased elsewhere in this judgment namely:-

‘That chromosomal DNA material has a deterministic influence on the uniqueness of the embryo, which carries into the inheritable characteristics upon which our individual sense of self and identity is based’.

Such an input into creation is so integral that it must command constitutional protection. Likewise, from the standpoint of the children. The relationship thus created flows in both directions. Therefore, I am satisfied that rights at the highest level of our legal order are in place in the circumstances as outlined. This means that the natural and human association between mother and child and child and mother must be recognised in law, in a way that reflects the fundamental reality of the situation.

151. Logically at this juncture of the discussion, one might expect that the judgment would enter into a discourse, of finer detail, regarding the rights of the respondents, individually and as a group, and where such rights should be constitutionally positioned. Consistent with the self imposed restraint which I have advocated above and for the reasons therein outlined (para. 144 supra), I do not propose to follow that course but I reserve the right to do so if called upon to further consider this issue. I am satisfied to limit myself by saying that such rights are to be found in Article 40.1 and Article 40.3 of the Constitution. They may well be justified also by reference to other provisions, but I do not consider it necessary to further explore this issue at the present time. If occasion should arise I will, as stated, do so in the future.

152. The question then remains as to whether the State has complied with its constitutional obligations as above referred to. In my view it has not. Mrs. R. may not even have the right to apply for guardianship, which even an unmarried father has and which in any event even if she has, would not be an adequate vindication of her rights. To suggest that the potential availability of adoption might satisfy this duty is unacceptable. As worthy in all as adoption is, making an enormous contribution to individuals, families and society alike, it does not meet the constitutional requirements in this case. Neither does the fact that Mr. R. could undoubtedly apply for guardianship. Whether the court could in those circumstances appoint Mrs. R. as joint guardian is perhaps an issue of some complication, which I will leave aside. One way or the other, I am satisfied that there is a right at constitutional level arising from the circumstances of this case which the State in the discharge of its duty under Article 40 must recognise and thereby vindicate.

153. In arriving at this conclusion I am acutely conscious, that the duty of recognising and vindicating rights falls on all branches of government, with the ultimate custodian of this responsibility, being the judiciary. In an area so complex and diverse as assisted human reproduction, which involves detailed matters of policy, it is in my view appropriate, that an opportunity should be given to the legislative branch in the first instance, to decide in which way such rights should be recognised and vindicated. However, in the event of a failure to do so, recourse may be had to the courts for this purpose.

154. Finally, in several respects I find the outcome of this judgment unsatisfactory, in particular regarding the children. As the law is presently understood in this area the children, prior to the 1987 Act, may well be considered illegitimate. That is a most undesirable consequence of the circumstances in which the legal situation rests, as of now. Furthermore, even with the abolition of illegitimacy, it is by no means certain that the children together with Mr. R. and Mrs. R. constitute a family under the Constitution. If that be correct, which I am not called upon to definitively say, then the protection afforded by virtue of Articles 41 and 42 thereof is denied to them. This would be a highly undesirable state of affairs which results from a situation where scientific and medical advances have far outpaced the use of existing legal practices and mechanisms. A comprehensive response is urgently required: which response at the level required, is not possible from a judicial point of view. Intervention therefore by the Oireachtas is essential.

155. For the above reasons, I will allow the appeal but would make a declaration that Mrs. R. and the children have rights which must be recognised and vindicated under Article 40 of the Constitution, in such a way which reflects, the fundamental relationship between them.