The State has told the genetic parents of two young children born to a surrogate that Irish law will only recognise the birth mother as the legal mother because of the legal principal that “motherhood is always certain”.
The couple have taken a case to the High Court arguing that the birth cert of their genetic children should be amended to name the genetic mother rather than the surrogate (birth) mother, The Irish Independent reports.
However, the Registrar General, Kieran Feely, told the court that the removal of the name of parents from the birth register is a matter of such "fundamental importance" that he had carried out a personal inquiry.
He came to the conclusion that he did not have the power to make a change to the register. In a letter to the solicitors of the genetic parents on June 14, 2011, he said it could not be treated as an "error of fact" since "the person who gave birth was the mother", saying he had to apply the principle: "mater semper certa est" – translated as "motherhood is always certain".
Mr Feely said the benefit of the current system was its simplicity and certainty.
If an inquiry into the genetics of the mother came into it, it would create "an enormous amount of uncertainty" and involve considerable expense, he said.
DNA tests cost around €500 to €1,000, he said, revealing that his office already receives DNA tests "in some hundreds" every year relating to cases of the removal of fathers' names from the register.
The State are arguing that the law here does not recognise surrogacy arrangements, the Irish Independent reports.
The surrogate mother is supporting the couple's application.
The application is also opposed by the Attorney General.
In 2010, Mr Feely received a letter from solicitors acting for the genetic parents, claiming the woman registered as the mother was not correct and asking that this be corrected.
Supporting documentation was sent to his inquiry, including DNA evidence and a letter from the IVF clinic involved, describing briefly what had transpired and explaining that the genetic mother was different to the birth woman.
The Government-appointed Commission for Assisted Human Reproduction recommended in 2005 that in surrogacy arrangements, the commissioning parents be deemed to be the legal parents.
No action has been taken by successive Governments since. Commissioning fathers must establish paternity and apply for guardianship through the Circut Court.
Austria, Germany and Italy, among other countries, ban the use of donated eggs because they believe it is wrong to split motherhood between a birth mother (possibly a surrogate mother), a genetic mother (that is the egg donor), and even a social mother (that is someone who is neither the birth mother nor the genetic mother but who raises the child).
A recent ruling by the European Court of Human Rights held that Austria, in maintaining this principle, was not in breach of the European Convention of Human Rights.