The chief registrar of births, deaths and marriages in Ireland has told the High Court he does not have the power to remove the name of a surrogate mother from the birth details of two children following a request from the children’s genetic parents.
Kieran Feely said he had followed the rule of mater semper certa est – motherhood is always certain – when deciding on whether the name of the genetic or the surrogate mother of the children should be entered on the register.
Mr Feely was giving evidence in a landmark case challenging the refusal of the State to allow the genetic mother of two children born to a surrogate mother to be listed as the children’s mother on their birth certificates. Reporting on the family law case, which would normally be heard in private, has been partially approved because of the importance of the issues at stake.
Details
Mr Feely said the details of the birth had been sent to the registrar by the hospital where the children were born, naming the surrogate mother as the 6mother.
The parents had attended at their local registrar’s office and had requested the genetic mother be registered as the children’s mother. The registrar contacted Mr Feely’s office for advice on how to handle the issue. The office advised the woman who gave birth should be registered as the mother.
Mr Feely said when he was appointed to his position in 2004 he was made aware the way to deal with the question of surrogacy was to register the birth mother as mother.
Asked by Mr Justice Henry Abbott whether this was the first surrogacy case he’d come across, he said he had only come across two such situations, including the current case, and both had occurred at about the same time.
Correction
Mr Feely told the court a superintendent registrar received a letter from a solicitor for the genetic parents in 2010 seeking to correct the register.
As chief registrar, Mr Feely investigated the matter under section 65 of the Civil Registration Act 2004. He received a statutory declaration from the parents, DNA evidence and a letter from the IVF clinic involved “describing what had transpired”.
Mr Feely said after legal advice, he concluded he did not have the power to change the mother’s name as he could not treat the surrogate mother’s entry on the register as “an error of fact”.
He wrote to the couple’s solicitor in June 2011 to tell them his decision.
Mr Feely told senior council Mary O’Toole, for the State, that the current system had “simplicity and certainty around it”. There were 75,000 births in Ireland every year and if genetics were to be used to identify parents it would create an enormous amount of uncertainty and practical challenges.
