Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

This group of amendments relates to a fundamental issue, namely, the question of parentage. When we had the briefing with the officials a statement was made that the birth mother is regarded as the legal mother. This goes to the heart of what happens in the post-birth period and possibly for some months afterwards. On the day of the briefing, the statement was not fully challenged. It would seem that it has become the received wisdom based on a 2014 ruling of the Supreme Court. I do not know whether this is the view of the officials or the view of the Attorney General. It is important that we have a legal note on this.

It has been brought to my attention that when we look at the detail of the judgments of each of the seven judges of the Supreme Court, under no circumstances can they be interpreted as confirming what is called in legal terms the mater maxim. It is quite an outdated concept that the birth mother is the legal mother. It is a maxim that was generally accepted in a period going back to the 1800s when the idea of surrogacy had not been contemplated. Reading the detail of the judgments by the seven judges, Mrs. Justice Denham, for example, said the mater maxim reflected a different social approach to parenthood and a time prior to medical and scientific advances. She also said there was no authority to suggest the maxim is either an irrebuttable presumption or that it was enshrined in Irish common law as argued by the State.

This concept of what is called the mater maxim, that the birth mother is the legal mother, was disputed by a majority of Supreme Court justices in that ruling. There are some very strong statements and I will quote one other from Mr. Justice O'Donnell. He said he wished to make it as clear as is possible that this decision is limited to the question of immediate registration of birth and should not be taken as deciding anything more. The Supreme Court only adjudicated on the birth mother being regarded as having a legal role in respect of the registration of birth and not parentage. I am curious as to how this statement that the birth mother is the legal mother became used as a statement of fact. What legal advice has the Minister received directly from the Attorney General on the status of the surrogate mother as birth mother? I know it is a very technical area but it does go to the heart of the whole question of parentage.