Any eejit knows who the mother is, except...

WHEN the finest legal minds in the country and the guardians of our Constitution end up sounding like a bunch of eejits, what does it say about us? When the truth that is staring everyone in the face about the mother of a set of twins cannot be acknowledged by the highest court in the land because of a lack of legal framework, what does that say about the legislature and its appetite for addressing social change?

Everyone knows who is the mother in the surrogacy case that has just been adjudicated in the Supreme Court. The court clerk knows it, the stenographers know it and the throngs who crowded into the courtroom to hear Chief Justice Susan Denham deliver her judgment know it too.

Even the twins know it, despite their age. It’s that obvious. Their mother is the person they are most attached to in the whole world and who looks after them every day.

It’s not their aunt who carried them for nine months and who safely delivered them into the loving arms of their parents before resuming her normal life.

Science says that the twins’ parents are whoever gave them their DNA, whoever shares the blood that courses through their veins.

In this case – which is the most straightforward surrogacy arrangement imaginable, taking place between sisters who love one another and where there are no commercial interests at stake – that also happens to be the woman who wants the children, as she used her own eggs.

The twins’ mother craved children so badly that she took a leap into a legal minefield and trusted to science, her sister’s solidarity and the strength of the primordial bond to give her the family she wanted.

But the law – or rather our increasingly outdated Constitution with its basis in a combination of strict Catholic principles and de Valera’s narrow, last-century view of society – let her down.

Although Mrs Justice Denham declared that there was ‘no definitive definition’ of ‘mother’ in the Constitution and nothing in the Constitution to prevent development of appropriate laws on surrogacy, that very lack of a modern definition of motherhood means the hands of the legislators are tied.

If the State’s definition of motherhood rests on the act of giving birth then a mother who does not fulfil that one condition cannot be a mother in the eyes of the law.

The evidence of science, society and human emotion may all be in her favour but she can’t have her name as mother on the birth certs of her children. How absurd!

In the old days, before science and IVF and test-tube babies, the mother was certain and motherhood was a continuum from the moment of conception to birth and child-rearing.

EXCEPT in adoption, a child in 1937, when the Constitution was framed, had only one possible mother but in 2014, there can be three women contending for the title. There’s the woman who wants the child, known in the fertility industry as the ‘commissioning parent’, the surrogate and the egg donor.

It’s a complex area but it’s up to our lawmakers to decide who has the higher claim, what controls are needed on a potentially lucrative and exploitative industry or indeed whether it should be banned altogether.

The legislature must also look urgently at sperm donation and other aspects of assisted reproduction.

Indeed, the landmark High Court decision that this judgment reverses had serious implications for all babies born from egg and sperm donors.

France and Germany have banned all forms of surrogacy but some eastern European countries allow it, as do some US states. The UK has banned commercial surrogacy.

We have neither banned nor legislated for surrogacy. Instead, we stick our head in the proverbial sand and hope the looming court cases, the increasing number of children born into a legal limbo, will just go away.

It’s the same approach we take to abortion, where the cost of enshrining the Right to Life clause in the Constitution has been an export business in abortion, devastating court cases taken by desperate women and public convulsions every few years about legislating for the newest hard case.

But the Constitution does not just trail behind society in areas of fertility, though that is arguably the area where the gap between social/ scientific advances and traditional mores is most apparent.

It also lags behind in terms of the family as we saw in the recent children’s referendum and the forthcoming referendum on gay marriage. It will also have to be changed if we are to have serious Dáil reform.

The Constitution has become a bulwark against the real world. And for as long as the Government drags its heels about legislating for the will of the people, it will stay that way.