Abstract
An Irish surrogacy case from 2013 illustrates how negotiations of the mother’s identity in a given national and legal context are drawing on novel scientific perspectives, at a time when the use of new biotechnological possibilities (such as IVF) is becoming more widespread and commonplace. The Roman dictum, ‘Mater Semper Certa Est’ (the mother is always certain, i.e. proven by giving birth) is contested by the finding of this Irish court, in which the judge made a declaration of parentage stating that the genetic parents of twins born using a surrogate (the mother’s sister) were the parents. This article critically examines the normative background assumptions involved in this ruling. It will argue that the particular deployment of arguments from genetics and epigenetics in this court case produces a naturalization of the mother’s identity that is inherently reductive. A second surrogacy case is also examined, this time regarding the rights of a woman of Irish nationality to receive paid maternity leave or paid leave similar to adoptive leave after the birth of her daughter to a surrogate mother in the US state of California. This case, which was brought to the Equality Tribunal in Ireland and decided by the Court of Justice of the European Union, is used to illustrate the possible ramifications of conflicting definitions of motherhood in the legal system. In concluding, this article argues for the development and deployment of a more complex understanding of the evolving state of motherhood within the courts, in keeping with developments in the IVF industry and the various new mother-relations it makes possible.
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Notes
The names of the couple are invented, while the Irish judge and the Chief Registrar are referred to by their real names corresponding to the formal procedure of the High Court. In the court case, the couple are referred to as ‘OR’ (the genetic father) and ‘CR’ (the genetic mother). The judgment title is: M.R & Anor—v-An t-Ard Chlaraitheoir & Ors. The Neutral Citation is: [2013] IEHC 91.
The terms ‘genetic mother’ and ‘genetic father’ were given by the court in their introduction to the ‘background facts’ of the case. ‘Genetic mother’ refers to the women, who provides the ovum, while ‘genetic father’ refers to the man who provides the sperm used in the fertilization process.
The applicants are making a number of observations, stated in the High Court of Ireland Decisions text; “Firstly, they observe that surrogacy arrangements are unregulated by statute in this jurisdiction and that no provision of Irish law prohibits such agreements. The surrogacy arrangement entered into this case was not an unlawful agreement; the arrangement was a completely altruistic act. Secondly, neither the constitution nor the Guardianship of Infants Act, 1964, as amended, expressly sets out and defines in law who is to be treated as the mother of a child save that s. 2 of the 1964 Act provides that the term mother “includes a female adopter under an adopter order”. Thirdly, scientific developments in the area of assisted human reproduction have brought about situations where there would not necessarily be coincidence between the identity of the genetic mother and the gestational mother. The applicants submit that in such circumstances it falls to the Court to define who, in law, is entitled to the status of parent or mother” ([2013]IEHC 91, p. 7).
Magdalena Duggan explains that “One should acknowledge that legal and ethical difficulties generated by the concept of surrogacy are linked with the fact that it significantly undermines the mater semper certa est principle, which, until quite recently, was not regarded as raising a question of fact in many jurisdictions, including Ireland” (Duggan 2014, p. 14–15). In her article, she outlines the current legal status of surrogacy arrangements in the United Kingdom, Germany, France, Poland and Ireland.
According to one of the anonymous reviewers of this article, the judge did not order a change in the children’s birth certificates. The judge was asked to change the birth certificates, but did not do so. Thus, the birth certificates of the twins records that the gestational mother is their mother.
Green was a member of the Commission on Assisted Human Reproduction, which debated the issue of surrogacy and produced a report in 2005. However, as he explained in the court-hearings, the role of epigenetics had not been included in the discussions of the commission. Green commented that future discussions about surrogacy would have to consider the role of epigenetics, although, as he made clear, it wouldn’t make a difference to his own personal view of the matter. For Green, the genetic link coupled with the mother’s intention to foster the child was still crucial in establishing ‘who is the mother’.
Dr. Clíona Molony is a principal investigator directing research on genetics for Merck Pharmaceuticals and is an adjunct lecturer in genetics and statistical genetics at Brandels University, Boston, Massachusetts.
Kaplan writes that “Moss shows that even a basic understanding of the internal organization of the cell precludes thinking of DNA as a master-molecule, ‘controlling’ cellular development and organization. The internal cellular structure is not ‘controlled’ or ‘coded’ by DNA; the replication of the internal cellular structure is the result of straightforwardly (if massively complex) physical processes, and there is no place where the ‘information’ that the cellular structure ‘represents’ is ‘stored’.[….] But even more significantly, Moss provides evidence that modifications to these complex structures are heritable through non-genetic pathways, and indeed may be implicated in the speciation events” (pp 96ff). Research focused on the evolutionary significance of ‘epigenetic’ mechanisms of inheritance is becoming increasingly common (Kaplan 2003, p. 1–2).
As Magdalena Duggan explains, “Currently, due to DNA analysis, it is possible to determine with nearly 100 % accuracy if a given child was factually derived from a given individual. Nonetheless, contemporary legislators tend not to require that the man and woman who are officially declared to be the child’s parents are in possession of irrefutable forensic evidence. Instead in a majority of cases, relevant, rebuttable legal presumptions, clearly inspired by the Roman heritage, will apply. Thus, with reference to motherhood most countries have followed the principle mater semper certa est (the mother is always certain), supported by the presumption mater is est quem gestation demonstrant (the mother is the woman whom the pregnancy points out) (Duggan 2014, p. 4).
What is meant by the Irish Court’s claim of autonomy in the surrogacy case? I am not implying that the rejection of the principle of the ‘Mater Semper Certa Est’ is necessarily shared by all judges in Ireland. It is true, as one of the reviewers of this article has pointed out, that the verdict could have been made by one maverick judge and is not necessarily a trend among judges in Ireland. The judge is claiming autonomy for his court’s decision in the following statement in the High Court of Ireland Decision paper: “I am strongly of the view that this so called international and historic consensus [on the use of the principle Mater Semper Certa Est] should not restrain the Court from making the conclusions so far appearing in this judgment for the reason that the Attorney General did not advance any detailed comparative law analysis to show why this consensus has arisen (apart from historical convention), such as instances of some of the constituent jurisdictions of the international consensus and having by their positive law actually making the contract of surrogacy absolutely illegal and void, and introducing other positive law dealing with surrogacy which specifically by a statutory code recognized the maxim of mater semper” [[2013] IEHC 91, p. 27]. In his departure from ‘this so called international and historic consensus’ and by commenting, that this Court should not be restrained from making their own conclusions, the judge is claiming (negative) autonomy for the decisions made by this court.
In a historical description of the development and ‘state of the art’ of brain research and more precisely in their description of the ‘plasticity’ of the brain, Rose and Abi-Rached mention the role of epigenetics. They explain, that “at the other end of life, researchers argued that experience in the very early days and months following birth, perhaps even in utero, shaped the brain in fundamental ways through modifying gene methylation. Epigenetic arguments sought to establish the way in which experience ‘gets under the skin’ at the level of the genome itself. [..]…There now seems to be a mechanism to pass these environmentally acquired characteristics of the brain down the generations. […] The brain now appeared as an organ that was open to environmental inputs at the level of the molecular processes of the genome, shaping its neural architecture and its functional organization, with consequences that might flow down the generations. The implications were clear: those who were concerned about the future of our children, and the conduct and welfare of the adults they would become, needed to recognize, and to govern, these processes of shaping and reshaping our plastic brains” (Rose and Abi-Rached 2013, p. 12).
In their book, An Anthropology of Biomedicine, Lock and Nguyen points out that according to Strohman, “Scientists are currently suspended between paradigms: genetic determinism is a failed paradigm he argues (although the majority of involved scientists would possibly disagree with him), and research into dynamic epigenetics is only just taking shape—in short, we are betwixt and between, and the current generation of scientists, especially when they work in alliance with the corporate world, have, for the most part, been trained for and remain firmly embedded in a deterministic framework” (Lock and Nguyen 2010, p. 337).
“If CR is not recognized as the mother, then the children, while living with her and her husband and in every practical respect having the outward signs of a family, are deprived of the actual recognition and security that comes with the fact of being a legally recognized family. This engages their rights under Articles 41 and 42” (IEHC 91, p. 11).
As one of the reviewers of this article has significantly pointed out, one needs to be very careful not to mix up the categorization or classification of an ‘egg-donor’ and an ‘intended mother’ in a surrogacy-case: “An egg-donor is a person donating her oocytes to someone else, without the intention to raise the child. An intended mother in a surrogacy case has the intention to raise the child. If the assisted reproduction is utilizing the intended mother’s own oocyte, she is also the genetic mother, but not an egg-donor”.
Thanks to one of the reviewers for providing the author with this example.
Stephen Bonnlander, the Equality Officer, writes in the decision paper about his choice to bring the surrogacy case to the (European) Court: “4.3 Arrangements which allow persons to become parents via a surrogacy arrangement were unregulated in Ireland at the time the complainant’s daughter was born in California, and still are not at the time of writing. This means there is no statute to address the complexities of the situation intended parents find themselves in, including any rights they might have in the workplace. As noted, the respondent did not dispute the complainant’s evidence, and in particular did not dispute that she is a person with a disability within the meaning of the Employment Equality Acts, but argued that due to the manner in which maternity leave and adoptive leave are regulated in statute, it was not within the respondent’s gift to grant the paid leave sought by the complainant as by right. 4.4. I accept the argument of the respondent with regard to domestic legislation. However, in light of the fact, that the various forms of Assisted Human Reproduction, including surrogacy, represent a new area of social and family life in which very little law exist at present, I considered that it was prudent to stay proceedings and make a reference for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union, to the Court of Justice of the European Union on 26 July 2012. This was to ascertain whether any rights that address the complainant’s situation exists under European Law, in light of the fact that the Maternity Protection Acts are the transposition into Irish law of the Council Directive 92/85/EEC of 19 October 1992 concerning the implementation of measure to encourage improvements in the measures and health of pregnant workers, workers who have recently given birth and women who are breastfeeding” (DEC-E2014-050, p. 3, Italics added).
As Bonnlander summarizes the Respondents’ Case, “The respondents deny discriminating the complainant as alleged or at all. They do not dispute the facts that the complainant described in evidence, but submit that entitlements to paid maternity leave or adoptive leave are governed by primary statute, this being the Maternity Protection Acts 1994–2004, and the Adoptive leave Acts 1995–2005. The provisions set out in the Interpretation section of the Maternity Protection Act 1994 and in Part II of that Act make it clear that only women who are physically pregnant and go into confinement to give birth to a child (whether alive or dead), are entitled to paid leave under the Acts. The first-named respondent argues that since Ms Z. did not give birth to her daughter, these entitlements do not apply to her, and that the respondents are precluded by statute from granting them to her by right. 3.2. Likewise, the provisions or the Adoptive Leave Acts 1995–2005 clearly set out that in order to avail of adoptive leave, an adoption needs to have taken place. The respondents argue that since Ms Z. and her husband chose to avail of the regulatory situation in the US State of California, where they were entered as parents on their daughter’s birth certificate, and therefore did not adopt their child, that Ms Z is likewise not entitled to adoptive leave pursuant to the provisions of those Acts. The respondents further argue that “leave equivalent to adoptive leave” does not exist in Irish law, and that therefore, the complainant is not entitled to it” (DEC-E2014-050, p. 2).
“And there is one prejudice of the Enlightenment that defines its essence: the fundamental prejudice of the Enlightenment is the prejudice against prejudice itself, which denies tradition its power” (Gadamer 1999, p. 270).
References
[DEC-E2014-05]. Workplace-relations. http://www.workplacerelations.ie/en/cases/2014/July/DEC-E2014-050.html. Accessed 13 Oct 2014.
Duggan, M. 2014. Mater Semper Certa Est. Sed Pater Incertus? Determining Filiation of Children Conceived via Assisted Productive Techniques: Comparative Characteristics and Visions for the Future. Irish Journal of Legal Studies 4(1): 1–23. http://ijls.ie/wp-content/uploads/2014/04/Magdalena-Duggan-FINAL-14-41.pdf. Accessed 27 May 2014.
Gadamer, H.-G. 1999. Truth and method. New York: Continuum.
Hacking, I. 2006. Making up people. London Review of Books 17: 1–3 (August 2006). http://www.lrb.co.uk.ez. Accessed 6 June 2013.
Horsey, K. 2013. The mother isn’t always certain: Irish surrogacy case leads the way. Bionews, p. 14. http://bionews.org.uk. Accessed 25 June 2013.
IEHC 91. M.R & Anor—v-An tArd Chlaraitheoir & Ors. High Court of Ireland Decisions. http://www.bailii.org/ie/cases/IEHC/2013/H91.html. Accessed 15 Jan 2014.
Kaplan, J.M. 2003. What genes can’t do. Notre Dame Philosophical Reviews, pp. 1–4 (August 11, 2003). http://ndpr.nd.edu/news/23618-what-genes-can’t-do/. Accessed 5 Nov 2013.
Korsgaard, C.M. 1997. Introduction in: Immanuel Kant. In Groundwork of the metaphysics of morals, ed. M. Gregor. Cambridge: Cambridge University Press.
Lock, M., and V.-K. Nguyen. 2010. An anthropology of biomedicine. Oxford: Wiley-Blackwell.
MacIntyre, A. 1988. Whose justice? Whose rationality? London: Duckworth.
Moss, L. 2003. What genes can’t do. Cambridge: A Bradford Book, The MIT Press.
Rose, N., and J.M. Abi-Rached. 2013. Neuro—the new brain sciences and the management of the mind. Princeton, N.J: Princeton University Press.
Acknowledgments
I would like to sincerely thank Dr. Judith Bishop for all her assistance in refining the arguments and language of this article. Furthermore, the three anonymous reviewers of this article have provided me with constructive critique and valuable feed-back improving this article considerably. Finally, I would like to thank Oyvind Lyngseth and Prof. Uffe Juul Jensen for helpful comments.
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Christiansen, K. Who is the mother? Negotiating identity in an Irish surrogacy case. Med Health Care and Philos 18, 317–327 (2015). https://doi.org/10.1007/s11019-014-9605-6
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DOI: https://doi.org/10.1007/s11019-014-9605-6