Who is the mother? Negotiating identity in an Irish surrogacy case

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.