MR v An t-Ard Chláraitheoir (Supreme Court)

conorh91

S.6 of the Interpretation Act 2005 permits legislation to be construed in the light of “changes in the law, social conditions, technology, or the meaning of words used in the Act … which have occurred since the date of passing of that Act …”

Furthermore, the Oireachtas has given to the courts a statutory power to direct the use of blood tests for the purpose of determining whether a person named in an application is, or is not, a parent of the child whose parentage is in question.

Nevertheless on Friday last, the Supreme Court delivered judgment in M.R. & Anor. v. An t-Ard Chláraitheoir & Anor., declaring that the genetic mother of a child is not a mother for the purpose of the registration of births, thus setting aside the previous decision of the High Court in this matter.

To quickly run through the judgments for anyone who has not yet read them, the most surprising and confusing of the judgments was delivered by the Chief Justice, who effectively endorsed the scientifically incorrect legal maxim that motherhood is proved by parturition, despite acknowledging that this maxim had never previously formed a legitimate part of the Irish common law.

O'Donnell J concurred with the CJ and also took an even more narrow course, but probably the least relevant. He effectively rejected the constitutional argument, and took the strongly literal approach of statutory interpretation. Hardiman J concurred.

In a similar vein to the Chief Justice, MacMenamin J endorsed the mater semper maxim, observing that motherhood is not an area where ambiguity is desirable. O'Donnell J concurred.

Clarke J delivered the sole dissenting judgment, preferring to direct an t-Ard Chláraitheoir to take steps to register the position of both 'mothers'. He acknowledged developments in human reproductive technology, and the capacity of the courts to amend established principles, but cited the constitutional legislative powers of the Oireachtas in endorsing a conservative approach to changes at common law. One wonders where Clarke J's judgment, in particular, leaves the judicial activism that followed Ryan.

The conclusions I would draw from this case are

• The mater semper maxim enjoys the force of law in Ireland; presumption of motherhood is irrebutable.
• This is the most conservative Supreme Court judgment since Sinnott
• The Supreme Court has gotten itself into a rut of literal interpretation of the Constitution, undermining the "living document" mode of interpretation. In effect, the Supreme Court has failed to develop a relevant and contemporary model for constitutional interpretation.
• Even in the aftermath of the application of natural law, the Irish courts remain committed to a deeply conservative approach to interfering with the traditional model of family life.

Any ideas? Do you welcome the decision of the Supreme Court in this case? What are its logical or constitutional shortcomings, if any?

Victor

Mater semper, in the present context, is about as sophisticated as a school yard observation by 6 years olds. At that age, I noticed none of the nuns in the school had children. Likewise, at that age, I'm sure that many Roman children in their day observed that humans can't fly. No doubt, if they knew about them, they would also have said that penguins can't fly. And we know both of these ideas to be false. http://www.youtube.com/watch?v=5USLvy_9fcM

conorh91 wrote: »

Clarke J delivered the sole dissenting judgment, preferring to direct an t-Ard Chláraitheoir to take steps to register the position of both 'mothers'.

I think this is the most appropriate judgment, although admittedly, one still has to answer the question of "Who is the mother?" or rather "Who has the right and responsibilities of raising the child?"

In parallel, what does this judgement imply regarding the father of the child, when one takes all the permutations into account. 'If the father is the one who impregnates the mother, there are some IVF doctors out there who suddenly have a lot of obligations.

Once again, the Oireachtas has been found wanting. 36 years after Louise Brown was born, they have done nothing. http://en.wikipedia.org/wiki/Louise_Brown

I actually don't find the majority judgments that interesting.

Frank Clarke throwing the door open on re-defining the constitutional family however...

conorh91

Victor wrote: »

I think this is the most appropriate judgment, although admittedly, one still has to answer the question of "Who is the mother?" or rather "Who has the right and responsibilities of raising the child?"

I think the issue of custody and parental responsibility was one into which the Court was correct not to inquire. After all, the fundamental issue was the identity of the mother, as per the Civil Registration Act 2004.

To that extent, O'Donnell J was correct: the 2004 Act is largely a demographic instrument.

In my view the problem is that the demographic instrument has completely failed to take account of a modern technological reality, and the Court has basically closed its eyes to this reality, and has undermined the Constitution as a living document.

Marcusm

conorh91 wrote: »

In my view the problem is that the demographic instrument has completely failed to take account of a modern technological reality, and the Court has basically closed its eyes to this reality, and has undermined the Constitution as a living document.

Would it not be fairer to see it as the court throwing the problem back to the correct place, ie the legislature. While it is disappointing that the genetic mother has not in this case been recorded as the mother (her sister has), what would be the case in the the circumstances of mothers who have acquired eggs from 3rd party sources and proceeded to have them fertilised and implanted giving rise to a child which might, had the court ruled differently, be required to be registered as the child of a (likely) foreign donor whom they would never know.

THe family in this case rightly want to ensure that the legal documentation for th children reflect genetic and practical realities. However, to have reduced this to a simple tes tof genetics would in a reductio ad absurdum scenario required the reissuance of a large number of other birth certificates and rendered other women mere strangers ot their children.

What is needed is a commission to consider the circumstances plus a matrix of outcomes which are then applied to particular circumstances.

conorh91

Marcusm wrote: »

Would it not be fairer to see it as the court throwing the problem back to the correct place, ie the legislature.

But that's exactly what they did, and I can hardly see how it was 'fair'. The Court was certainly conciliatory and restrained, but shrugging and denying responsibility was hardly fair.

The court had plenty of elbow room here to assert the identity of the mother, and its reasons for not doing so are vague and unconvincing, as well as having its head firmly stuck in the sand as regards scientific developments since Mendel.

While it is disappointing that the genetic mother has not in this case been recorded as the mother (her sister has), what would be the case in the the circumstances of mothers who have acquired eggs from 3rd party sources and proceeded to have them fertilised and implanted giving rise to a child which might, had the court ruled differently, be required to be registered as the child of a (likely) foreign donor whom they would never know.

That argument was easily dealt with by counsel for the original applicants, who merely sought the capacity to rebut the presumption of motherhood on grounds of parturition.

In the circumstances you are contemplating, the birth mother would be presumed to be the mother, even if the genetic material was not hers. The only way her motherhood could be disproven, would be in a situation where the genetic donor sought to do so, or to assert some right of access or custody. As things stand, it is unclear what the outcome would be in those latter circumstances, since access and custody were not relevant to the instant case.

What is needed is a commission to consider the circumstances plus a matrix of outcomes which are then applied to particular circumstances.

There already was a Commission, established 14 years ago. They took 5 years to report, and no action was taken until 2014
http://www.lenus.ie/hse/bitstream/10147/46684/1/1740.pdf
In 2014, an Bill was brought forward by Alan Shatter which aimed to deal with some of the findings of the Commission, but ignored many. Nevertheless, after the departure of Alan Shatter, the new Minister dropped surrogacy from the Bill.

In my view, this pass-the-parcel exercise undertaken by Supreme Court has only managed to compound the legislative lethargy of the Oireachtas. I don't believe the Supreme Court would have been stepping on the toes of the Oireachtas at all, since the Oireachtas has specifically passed legislation creating procedures by which a person can have his or her parentage established (note: parentage, not solely paternity).

Victor

So, what happens when you have one male identical twin donate sperm to a pair of female identical triplets and the babies (same gender) are mixed up in the maternity hospital?

Any test for genetic parentage may be inconclusive. The identity of the birth mother would be unknown.

Add in that one of the triplets is sterile and using eggs from the third triplet.

loremolis

Victor wrote: »

So, what happens when you have one male identical twin donate sperm to a pair of female identical triplets and the babies (same gender) are mixed up in the maternity hospital?

Any test for genetic parentage may be inconclusive. The identity of the birth mother would be unknown.

Add in that one of the triplets is sterile and using eggs from the third triplet.

You have a Hollywood blockbuster

conorh91

Victor wrote: »

So, what happens when you have one male identical twin donate sperm to a pair of female identical triplets and the babies (same gender) are mixed up in the maternity hospital?

Any test for genetic parentage may be inconclusive. The identity of the birth mother would be unknown.

Have you ever thought of writing for the soaps?:pac:

In the circumstances you describe, you mention that the sperm-donor-father is a twin. This is not particularly material, since the paternity issue is easily resolved by a declaration as to the identity of the sperm donor whereby, even in the absence of the donor's co-operation, the Circuit Court could arrive at a determination of paternity based on the civil standard of proof.

Establishing maternity is obviously difficult in these circumstances, but that reflects more a limit of science than of law.

The mater semper principle would not be applied in the normal way, since parturition could not be presumed at the outset. Genetic testing would not be an option, since the triplet pair are identical. So we are left in no-man's-land.

On the other hand, if one or both of the mothers could make a case for claiming maternity of either child based perhaps on recognition, then the Circuit Court may, as with the uncooperative father, decide the matter on the basis of the balance of probabilities.

It is possibly worth contemplating one further scenario.

Lets say two non-twin brothers had donated sperm to two identical twin sisters. In the absence of the mater semper rule (as it is now) having application, the relevant authorities (the Registrar or the Court) may have resort to genetic testing in order to establish maternity.

It seriously offends the common sense of reasonable people to observe that it would take this fantastical set of circumstances for those authorities to engage with modern scientific reality in establishing maternity.

conorh91

I just revisited the courts service website, as I am wont to do late at night, and noticed that Hardiman J's judgment has been circulated online.

http://courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/1ef9e77e549c328a80257d8c0050ebbd?OpenDocument

Hardiman J, despite allowing the appeal and setting aside the decision of the High Court, concurred with the dissenting judgment of Clarke J on the separation of powers, although he disagreed with Clarke J's remedy, and (true to form, and unsurprisingly) observed that the Court was not entitled to contemplate such a remedy, going so far as to quote himself in Sinnott and T.D.

Hardiman J summed up the issue and his decision thus"

This is an invitation to overrule the established understanding of “mother” and then to legislate in the area left vacant, and to do so without any evidence-based assessment of the merits of the new dispensation. If the Court were to accede to the Respondents’ invitation, it would dangerously approach illegitimacy.

Unfortunately, he did not engage with the "rebuttable presumption of motherhood" argument submitted on behalf of Counsel for the Respondents (the original Applicants) which I believe should have allayed some of his concerns in this regard.

maciek87

Victor wrote: »

I think this is the most appropriate judgment, although admittedly, one still has to answer the question of "Who is the mother?" or rather "Who has the right and responsibilities of raising the child?"

http://en.wikipedia.org/wiki/Louise_Brown

Time had proved you were right, although perhaps not in the context of identical, double-twin swap around in hospital...

Mater semper certa est presumption, traditionally operates under the praesumptio iurist et de iure principle originating from Roman tradition to the precise effect that no evidence be allowed to counter the presumption of the motherhood of the birth mother.
Relevant development in this area are Parts 2 & 3 of the Child & family Relationships Act, 2015, which were commenced on 5th of May (yesterday). What is regulated there are areas of Donor-Assisted Human Reproduction and rules of parentage in this context. A parent of the child will be a woman who gives birth and her spouse or civil partner if they consented to be recognised as the second parent, or a cohabitant who had consented to be a second parent and after cohabitation period of 12 months, or no one if she is single. If the embryo was donated parents must consent to that they will, or will not, be legal parents and if such declaration is not made – then the gamete donors will not be considered to be the parents of the child. Significance of this new approach being in effect is that the praesumptio iurist et de iure is no longer observed – presumption of motherhood by birth may be defeated in presence of evidence that the declaration was signed.

And that means that Clarke once again had proven that he is one of the more prescient, and astute, judges out there.

Claw Hammer

maciek87 wrote: »

And that means that Clarke once again had proven that he is one of the more prescient, and astute, judges out there.

Judges out where?

nuac

Mod
CH, let us not encourage any comedians to enter this excellent debate

maciek87

Claw Hammer wrote: »

Judges out where?

Now Chief Justice, Clarke is obviously an Irish judge so I referred to circles of domestic judiciary. My statement was comparative in nature.

nuac wrote: »

Mod
CH, let us not encourage any comedians to enter this excellent debate

What did you not understand in my statement. Is the context, applicability of the law or, perhaps, a general theme as embedded in the thread?

So it happens I just read most of the judgments in the area. I may help.:rolleyes: