Irrebutable Presumptions and Fair Procedures

In Ireland last week, the High Court rendered a landmark judgment on surrogacy: M.R. v. An t-Ard Cláraitheoir, [2013] IEHC 91.

Here, the registrar of births had refused to register a biological (or genetic) parent as the mother of her twins. Instead, the state agency insisted that the surrogate (or gestational) mother should be registered. This even though the surrogate mother did not oppose the application by the biological mother.

One of the issues in the case -- which the biological mother ultimately won -- was the legal status of the principle mater semper certa est. In the following passage, Abbott J. explained the term:

100. The maxim mater semper certa est is part of a series of maxims relating to maternity and paternity arising from the ancient Roman law. It can be said that the maxim achieved such prominence, acceptance and fixity by reason of the fact that before IVF the mother of the baby was determined at parturition or birth and the maxim (being an incontrovertible truth) expressed the facts of the situation. In the parlance of the common law the maxim became a presumption at law and in fact. Because it was based on incontrovertible facts, it became an irrebuttable presumption in any court proceedings. That meant that motherhood would be presumed in respect of a baby as between a woman and that baby once parturition of that baby was proven in relation to the woman. No other evidence or argument was required. The matter was self evident. (My emphasis)

The registrar had -- after receiving legal advice -- relied on this presumption. Abbott J. held, however, that the irrebutable presumption violated the right to fair procedures protected by the Irish Constitution. It is interesting that Abbott J.'s conclusion was very much coloured by the changing circumstances in which he was rendering judgment:

104. [T]he presumption of mater semper certa did not survive the enactment of the Constitution insofar as it applies to the situation post IVF. 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 by on a genetic basis and on being proven, the genetic mother should be registered as the mother under the Act of 2004. The conclusion does not raise the consideration of the best interest of the child which in most cases, if not in all, would be best served by an inquiry of the genetic interest.

It had been suggested by the state that an irrebuttable presumption of mater semper certa est principle was international best practice. Apparently no basis for this position was advanced, however, which Abbott J. found unsatisfactory:

105. I am strongly of the view that this so called international and historic consensus 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 had arisen (apart from historical convention), such as instances of some of the constituent jurisdictions of the international consensus and having by their positive laws actually making the contract of surrogacy absolutely illegal and void, and introducing other positive law dealing with surrogacy which specifically by a statutory code recognised the maxim of mater semper...There is nothing in the Irish legislative context that positively affirms the maxim of mater semper certa est, or for that matter makes illegal any surrogacy contract. Therefore, the Court should not be swayed from its conclusions or doubt same by reason of the assertion of this so called European consensus.

The ultimate conclusion seems, then, like the common sense one: that the registrar should have regard to all relevant circumstances in determining who the true "mother" of a child is. Yet another blow for the irrebuttable presumption.

Note: Further analysis by Andrea Mulligan is available over on Human Rights in Ireland.