Monday 11 March 2013

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.

2 comments:

  1. Abbott J "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". Ireland's 60,000+ adopted people would agree 100% with this arguement largely due to the Supreme Court enforced - I O'T vs B 1998 - judgement, concerning 2 adult women, informerly fostered during the 1940's & 50's which copperfastened the status quo of adopted people having to apply to a court for discovery of their genetic parentage. In the same judgement, then Chief Justice, Hamilton J set out 8 ludicrous tests which a Circuit Court judge might wish to apply in considering whether or not to release the details of a fostered person's genetic parentage to them. They are
    1. The circumstances giving rise to the natural mother relinquishing custody of her child;
    2. The present circumstances of the natural mother and the effect thereon (if any) of the disclosure of her identity to her child;
    3. The attitude of the natural mother to the disclosure of her identity to her natural child, and the reasons there for;
    4. The respective ages of the natural mother and her child;
    5. The reasons for the natural child’s wish to know the identity of her natural mother AND TO MEET HER (MY EMPHASIS)
    6. The present circumstances of the natural child; (AND INCREDIBLY)
    7. THE VIEWS OF THE FOSTER PARENTS, IF ALIVE.

    These tests have been subverted by the Adoption Authority, the HSE & every tinpot adoption agency to be an exhaustive list & to refer to people adopted under the 1952 Adoption Act so the Supreme Court has effectively ruled that 1 group of adults (adoptive parents) can dictate whether or not another group of adults (adult adopted children) can discover their genetic parentage. Am I alone in thinking this was then & is now unconstitutional?. Critically, the list proposed by Hamilton J is highly unequal - excluding the fairly obvious “Is the natural mother still alive?” & “The circumstances giving rise to the child losing the guardianship of his mother?” & “The attitude of the adopted person to the non-disclosure of information on all other family members – father, siblings etc)?” etc etc.
    If any legal eagle out there would like to examine this issue further, please contact Susan Lohan, Adoption Rights Alliance, email: susan@adoption.ie

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  2. Abbot J –“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.”
    Ireland’s 60,000+ adopted people would 100% agree with this & we hope that the M.R. vs An t-Ard Cláraitheoir judgement will result in a revisiting of the 1998, Supreme Court I.O’T vs B judgement (if such a thing is possible?). This case, concerned 2 adult women (informally fostered during 40’s & 50’s) seeking identification of their genetic mothers under the 1987 Status of Children Act from a highly suspect church run adoption agency , the Rotunda Girls Aid Society (RGAS) – now defunct - in the guise of a Fr Gerard Doyle. If memory serves, the High Court agreed with the 2 women but the case was appealed (by the agency?) to the Supreme Court & the women lost.
    The 1998 I O’T v B Supreme Court judgement stated that the child has an un-enumerated constitutional right to know the identity of his/her natural parents. The court said however that the right was not absolute and had to be balanced against the natural mother’s right to privacy and anonymity. The Supreme Court stated that neither set of rights was absolute and went on to suggest a list of questions a Circuit Court judge may wish to consider when determining which right would prevail in any given case . They included

    1. The circumstances giving rise to the natural mother relinquishing custody of her child;
    2. The present circumstances of the natural mother and the effect thereon (if any) of the disclosure of her identity to her child;
    3. The attitude of the natural mother to the disclosure of her identity to her natural child, and the reasons there for;
    4. The respective ages of the natural mother and her child;
    5. The reasons for the natural child’s wish to know the identity of her natural mother AND TO MEET HER (MY EMPHASIS)
    6. The present circumstances of the natural child; and (INCREDIBLY)
    7. THE VIEWS OF THE FOSTER PARENTS, IF ALIVE

    Regrettably, this list has been rewritten to refer to Ireland’s entire population of adopted people, adopted under the 1952 Adoption Act & worse is treated as an exhaustive list of qns by the Adoption Authority of Ireland (AAI), the HSE & every tin-pot adoption agency, all relieved that they can use this case to enforce a blanket ban on revealing parental information to adopted people. Fairly obvious basic questions, which could have been considered have never been added including;

    “Is the natural mother still alive?”; “What if the natural mother cannot be located?”
    & obvious corollaries to the 7 qns such as” the circumstances giving rise to the child losing the guardianship of his mother” & critically “The attitude of the adopted person to the non-disclosure of information on all other family members – father, siblings etc)” are never asked.
    Perhaps a legal eagle out there could comment on how constitutional it is to allow 1 group of adults (adoptive parents) to arbitrarily decide whether or not another group of adults (adopted people) may know the identity of their genetic parents. If you are interested in this case & my queries, could you please email adoptionrightsalliance@gmail.com FAO Susan Lohan

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