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Tuesday, November 11, 2014

Surrogacy ruling hints at how Supreme Court may approach cases to come

Judges tend to be gentle in their criticism of politicians. When they do let their disapproval show, the admonishment tends to be couched in such polite, passive-aggressive language that it can be hard to detect. It is no accident that the best-remembered passage from the Supreme Court’s judgments in the X case is one that captures the anguished tone of Mr Justice Niall McCarthy as he criticises the “inexcusable” failure to enact laws to give effect to the abortion amendment of 1983.

Frustration at the legislature’s failure to regulate another complex social issue – surrogacy – was the theme that ran through all seven Supreme Court judgments in a landmark ruling on the topic last Friday. To a man and woman, the judges repeatedly bemoaned the absence of laws to guide them.

They described a “legal half-world” that “cries out for legislation”, a world where couples struggling with “the pain of infertility” face the prospect of having to become a “vociferous pressure group” to agitate for a proper legal regime.

The judgments show deep discomfort at the courts having been put in this situation, facing the ethical and moral fallout from what the State has tacitly allowed to develop but not bothered to regulate.

Ever since the judicial expansionism of the 1960s and 1970s, lawyers have argued about the lines of demarcation between the Four Courts and Leinster House. It’s not all that surprising that the Supreme Court resisted getting too close to the legislature’s terrain in a minefield such as surrogacy, but its judgments do give an insight into how members of the court see their own role.

Dissenting judgment
In the one dissenting judgment out of seven, Mr Justice Frank Clarke remarked that “there may be circumstances where the courts are required to develop common law principles to meet new scientific circumstances”. Mr Justice Adrian Hardiman distanced himself from “the expansive attitude to the courts’ power” expounded by Mr Justice Clarke and warned that if the court did take up the invitation to “overrule the established understanding of ‘mother’ ”, it would “dangerously approach illegitimacy”.

The judgments also revealed interesting differences of approach. Chief Justice Susan Denham focused on the definition of mother in the Constitution (she concludes that there is none) and the Latin maxim “mater semper certa est”, or “motherhood is always certain” (it is not part of the common law, she finds). Mr Justice Liam McKechnie and Mr Justice John Mac Menamin added a focus on the best interests of the child in surrogacy.

Mr Justice Clarke and Mr Justice Donal O’Donnell have tended to agree on all the major cases in their time with the court. Here, though, they came at the question very differently. Asked whether the genetic mother of twins born to a surrogate could be registered as their mother, Mr Justice Clarke concluded that, in the absence of a definition of the term, “mother” applied equally to a birth mother and a genetic mother.

In contrast, Mr Justice O’Donnell interpreted the question more narrowly, as one of interpreting the statute on birth registration. He also reflected on the role of courts in developing the law. Sometimes the administration of justice may require a decision that has dramatic and far-reaching implications, he said. But his emphasis was on the word require. “If it is not necessary to decide a particular issue or decide it in a particular way to decide the case, then it may be necessary, or at least wise, not to decide it,” he added.

Humane primer
The judgments amount to a humane and reflective primer on the complex ethical questions raised by advances in reproductive science. But they will also be scrutinised for hints as to how the court might deal with future cases. Supporters of the idea that judges should enforce socio-economic rights, such as to housing and health, will note how conscious many of the court’s members are of what the late Mr Justice Séamus Henchy referred to as “the tunnel vision imposed by the facts of a single case”.

In other words, the judges are concerned that they are ill-equipped to set down far-reaching principles based on single, potentially unrepresentative cases. There’s also a sense that the Supreme Court itself is looking forward. As Mr Justice Hardiman noted, the question of judicial power and its limits “will inevitably arise in other cases, sooner rather than later”.


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