Landmark Judgement in Surrogacy Case

The High Court gave a landmark judgement in a surrogacy case on 5th March 2013.

The case involved a husband, his wife and her sister. The wife was the genetic mother and the husband was the genetic father of twins. The sister carried the children in her womb and gave birth to the twins. The Chief Registrar of Births refused to register the husband and wife as the legal parents and said the sister was the mother of the children in law.

The husband and the wife applied to the High Court for a declaration that they were the parents of the children. The sister supported their application. The Court heard a number of expert witnesses in the case and ultimately concluded that as the wife was the genetic mother of the children, and the court was satisfied that she was, she should be registered as the mother. The Court noted the “total absence” of any positive legislation on surrogacy and the solicitor for the couple called on the Government to bring in the much needed legislation.

The facts of this case are different to many other surrogacy situations. Firstly all the parties were in Ireland, in many other surrogacy cases couples go abroad. Secondly, the husband and wife were the biological mother and father, in many surrogacy cases, there may be egg and/or sperm donation from a third party. Thirdly, the sister supported their application, in other cases complications can arise if the parties to the “surrogacy agreement” don’t do as they agree and such agreements are unenforceable.

Genetic mother wins surrogacy case

The genetic mother of twins born to a surrogate mother has won a landmark case at the High Court to be declared the legal mother of the twins.

Mr Justice Henry Abbott ruled that the genetic mother was the legal mother and was entitled to have a declaration from the court stating that.

He also said the twins were entitled to have the genetic mother named as their mother on their birth certificates.

The State had refused to allow the genetic mother to be listed as the mother on the twins’ birth certificates.

The surrogate mother was the sister of the genetic mother, and had not objected to the couple’s application.

Mr Justice Abbott said the input of the birth mother was to be respected and treated with “care and prudence”. But the old maxim mater semper certa est, motherhood is always certain, which the State argued meant the birth mother was always the legal mother, did not survive the enactment of the Constitution, “as it applies to the situation of in-vitro fertilisation”.

“To achieve fairness and constitutional and natural justice for both the paternal and maternal genetic parents, the feasible inquiry in relation to maternity ought to be made on a genetic basis and on being proven, the genetic mother should be registered as the mother,” the Judge said.

He also ruled that the word “mother” in Article 40.3.3 of the Constitution had a meaning “specific to the article itself”. This was related to the existence of the unborn only when the foetus was in the womb and not otherwise, he said.

The state had argued the Article, often referred to as the right-to-life amendment, had defined motherhood as the birth mother only.

Mr Justice Abbott also noted that in Ireland positive legislation on surrogacy was “totally absent” and so the contract entered into by the couple and the surrogate mother was “not illegal”. But he said its performance in the Irish legislative context “would not be enforceable by any court”.

Responding to the ruling, Solicitor Marion Campbell, on behalf of the family, said they were delighted with the outcome.

“It has been a very long, hard and emotional time for them and they would like to express their thanks for the support shown to them by their family, friends and legal representatives,” she said.

“It is to be hoped now that much needed legislation in relation to this whole difficult area of surrogacy will be brought in and that children born by way of surrogacy arrangements will have their rights enshrined in such legislation.

By Fiona Gartland – Irish Times | Tue, Mar 05, 2013 | Link to Irish Times Article

Required birth registration will not boost fathers’ rights

THE LAW on guardianship of children dates from 1964 and is in urgent need of reform.

Unfortunately, the Government’s current reform proposal is limited in scope and fails to address some of the substantive shortcomings in the current framework of family law.

The introduction, in isolation, of compulsory joint registration of births is not in keeping with the undertaking in the Programme for Government to reform and modernise family law in line with recommendations of the Law Reform Commission.

The commission’s report, Legal Aspects of Family Relationships, proposed extending automatic guardianship rights to all parents, regardless of marital status.

Compulsory joint registration of births was only one aspect of a much broader scheme of reform. The Government is focusing on the low-hanging fruit instead of engaging in the root-and-branch reform that is necessary.

Compulsory joint registration of births means the name of both the mother and father would appear on the birth certificate of every child. It is relatively uncontroversial to suggest a child should have information about, or at the very least the name of, both parents.

However, Irish law does not at present require the name of both parents on the birth certificate of a child. Where parents are married, both names are usually entered on the birth certificate. Where a non-marital mother registers a birth alone she will not be asked about the father.

There are myriad reasons why the father’s name may not be included on the birth certificate of a child born to non-married parents. One reason is the urgency associated with getting the birth registered, as registration triggers the payment of child benefit.

The process for registering a non-marital father on the birth certificate is logistically complex. In many cases, therefore, the intention may be to re-register the birth to include the father’s name at a later stage, once social welfare payments are activated, but this is often not done.

In some cases the father’s name may be omitted in the mistaken belief this will ensure he does not become a guardian. In fact, under the current law, the inclusion of the father’s name on the birth certificate gives rise to no legal rights or responsibilities.

Alternatively, the mother may genuinely not know who the father is or she may know but not wish to enter the name on the birth certificate for a variety of reasons including, for example, rape, incest or fear of violence.

From a children’s rights perspective it is possible to view compulsory joint registration as a positive development, as it is a means to vindicate the right of the child to know the identity of his or her parents.

There are also medical and social reasons why it is important for an individual to know his or her genetic background, one example being to avoid unknowingly entering into a relationship with a relative.

However, the push to introduce compulsory joint registration in isolation is concerning. Requiring the names of all parents to be registered, while benefiting the child, will also provide the State with information on the family status of a greater proportion of the population.

During a period when the State’s finances are strained, and over €1 billion was spent on the One-Parent Family Payment in 2010, it is not unreasonable to suggest this information may be used in the future to pursue parents to recoup some of that expenditure.

In principle there is no objection to requiring a parent to contribute to the cost of raising his or her child. However, with responsibilities should come rights, and the difficulty is that the current law on guardianship grants very limited rights to non-marital fathers.

At present, unless the mother agrees to extend guardianship rights to the non-marital father, he can only obtain guardianship by court order. To address this inequality, the commission recommended the introduction of automatic guardianship rights for non-marital fathers. It suggested a trigger mechanism for activating guardianship and considered that being named on the birth certificate would be appropriate.

This was to ensure that all parties concerned would have a record of who was a parental guardian of a child. To guarantee that practically all non-marital fathers would be registered on the birth certificate, and therefore entitled to guardianship, the commission recommended compulsory joint registration.

It accepted such a system would be subject to limited exceptions, for example where the mother genuinely does not know the identity of the father or where there is a risk to the health or wellbeing of mother or child.

However, by introducing only one aspect of this reform proposal, compulsory joint registration of births, the Government is increasing responsibilities without creating concomitant rights. In so doing it is undermining the spirit of the Law Reform Commission’s recommendations.

Dr Claire Murray is a lecturer in the Faculty of Law, University College Cork and was the principal legal researcher on the Law Reform Commission’s Legal Aspects of Family Relationships report

By CLAIRE MURRAY – Irish Times | Wed, Jun 06, 2012 | Link to Irish Times Article

A raw deal for unmarried dads

Sir, – I agree with John Waters (Opinion, January 6th) when he says that “unmarried Irish fathers remain deeply ignorant of their legal situation”. Treoir works to inform unmarried parents of their legal rights. Given the increasing number of unmarried parents in Ireland, this is indeed a daunting task.

Our experience in the National Information Service for unmarried parents is that unmarried parents assume where the father’s name is on the child’s birth certificate that the father acquires guardianship rights in respect of his child. This is not so. A father has to take action to become guardian. He can either sign an agreement with the mother (but alas, there is no central register for such agreements) or he can apply to the local district court to be appointed guardian.

The Law Reform Commission has issued its report on legal aspects of family relationships which contains significant recommendations for the improvement of guardianship rights for unmarried fathers. Though these recommendations may take some time to come into affect it is a step in the right direction. – Yours, etc,

MARGOT DOHERTY,

Assistant Chief Executive

Treoir,

IFSC, Dublin 1.

Margot Doherty Letter to the – Irish Times | Tue, Jan 10, 2012 | Link to Irish Times Article

Maintenance reduced in order to reflect changed circumstances

The amount a man must pay to his former spouse and their two children was reduced to €3,000 a month because of a reduction in his income.

H -v- D

Neutral Citation (2011) IEHC 233

High Court

Judgment was delivered on June 7th, 2011, by Ms Justice Mary Irvine.

Judgment

The levels of maintenance payable by a man to his former wife and their two children were reduced to the amount of €3,000 a month set in 2005 because of a reduction in his income. The payments had increased since 2005 in line with the consumer price index. The man was ordered to supply his wife with documentary evidence of his income on an annual basis.

Background

The couple were married in 1998 and had twin daughters who were 10 years old when the application was made. The marriage broke down when the children were infants, and the couple obtained a divorce in December 2005.

Under its terms, the applicant husband paid €3,000 a month, €1,000 for each child and €1,000 for the respondent wife. In November 2010, it was altered so that three-quarters went for the children and one quarter for the wife. The sum was adjusted in line with the consumer price index.

The husband was seeking to have the level of maintenance reduced on the basis that his income had been reduced from €90,000 net a year, and by the imposition of Government levies.

The overall effect left him with a net income of €86,000 for 2009 and €73,000 for 2010, allowing for a tax-avoidance payment of €17,000. His take-home pay slip showed a monthly income of €5,221.45, which would amount to €62,650 this year, and he also expected to receive a bonus of between €5,000 and €10,000.

Ms Justice Irvine calculated the bonus would be €7,500 after tax, pointing out that the bonuses were €22,980 in 2009 and €18,494 in 2008, although there had been none in 2010.

She also said his net income was less than any of the last seven months in 2009. Therefore she would proceed on the basis that his income for the year would be €70,157, plus the bonus. She also pointed out he had €58,000 in the bank, which he could dip into until his bonus was paid.

Decision

“Even if it be the case that the court accepts that the applicant’s income may have reduced by 21 per cent since the original order was made, that does not entitle him to an automatic proportionate reduction in his maintenance payments unless he can demonstrate that the maintenance so reduced would be sufficient to meet the reasonable ongoing needs of the respondent and their two children,” Ms Justice Irvine said.

The respondent had no savings and had done all she could to reduce her outgoings. She had had difficulty in paying her mortgage and the applicant was of great assistance to her here. All the facts suggested she was struggling on her present maintenance.

She added it was significant that, as a result of an injunction by the applicant, she was obliged to live in Dublin so that the applicant could play an active role in parenting the children. This meant the wife had to rear her daughters as a single parent in a city where she had no family support whatsoever.

Her parents and siblings all live in Cork, where she would much prefer to live, and if she had been able to do so, she could have been able to work full-time with the support of her family and become financially independent of the applicant. She had difficulty in meeting work commitments when one or other child was sick and she had difficulty finding and paying for childcare during the school holidays.

Ms Justice Irvine said she therefore rejected the suggestion made on behalf of the applicant that the respondent could be working either part time or full time, especially while the children were in primary school. “It is all very well to say she should get help [when a child is sick], but where do you get it when your child has a temperature at 7am and you have to be at work by 9am if you have no partner or family to call upon?”

While the respondent was very well qualified, in the present economic climate it could not be assumed she could walk into a job tomorrow, as she had had practically no work experience for the past 10 years. There was also the problem of childcare.

She also rejected a suggestion from the wife that the applicant should take in a lodger or forego contributing to his pension.

Having considered all the evidence, she said she was satisfied there should be some amelioration in the maintenance payable under the December 2005 court order, notwithstanding that this would impose a degree of hardship on the wife.

She considered the appropriate maintenance was €3,000 a month – €750 for the wife and the balance divided between the children, subject to consumer price index adjustment from June 2012.

She said it was important that the wife could monitor with accuracy the husband’s income over the next few years so she could seek to renegotiate an increased maintenance payment if his salary increased above what formed the basis for the current order.

She therefore made an order that on January 14th each year he furnish his wife with copies of all wage slips for the previous year; a copy of his P60 for the previous year; details of any bonus payments due; details and proof of any payment made by him as a tax-avoidance measure in the previous year and a statement from his employer confirming the information provided.

The full judgment is on courts.ie

Paul McCarthy BL, instructed by Heather Lennon solicitors, Dublin 2, for the applicant; the respondent represented herself

Irish Times | Mon, Jul 25, 2011 | Link to Irish Times Article