Decision in surrogacy case could have ‘unintended consequences’, court told

The High Court has been warned that any decision it makes regarding the right to legal recognition of the genetic mother of a child born through surrogacy could have “unintended consequences” for all areas of assisted human reproduction.

Lawyers for the State said the court was being presented with a “deceptively simple situation” when the global issues surrounding international surrogacy are “enormously complex”.

Senior barrister Mary O’Toole was making submissions on behalf of Ireland and the Attorney General in a case taken by Kathy and Brian Egan and their three-year-old genetic son, who was born to a surrogate mother in Ukraine.

The Egans, of Castlecomer Road, Co Kilkenny, claim the State has breached their family’s constitutional rights by not providing a route for Ms Egan to be legally recognised as the mother of their child.

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They are asking the court to declare that the lack of a pathway for retrospective recognition of maternal parentage of children born through international surrogacy amounts to “invidious discrimination” against their family.

Mr Egan is the child’s genetic and legal father, having successfully applied for a declaration of parentage by the High Court. Ms Egan is the boy’s genetic mother and his legal guardian, a relationship that will lapse under law when he turns 18.

The husband and wife say they researched international surrogacy options after Ms Egan experienced eight miscarriages and they were left in a “hopeless situation”.

A Ukrainian woman carried and gave birth to their genetic son in 2019 under a surrogacy agreement.

The lack of legislation in Ireland relating to surrogacy has caused the family “significant anxiety and fear”, with their worries magnified due to Mr Egan’s cancer diagnosis, they say.

The attraction of the proposed arrangement, where a child’s genetic mother would be recognised in law, is understandable in the present case when one “cannot help but have great respect for the Egan family and great sympathy for the circumstances they personally find themselves in”, she said.

Overturned ruling

However, the matter engages the rights of other categories of people and could have “unintended consequences” for all areas of assisted human reproduction, she said.

Genetic donors who offer embryos to prospective parents for fertility purposes have no legal rights to parentage. If there was a right to genetic recognition, those donors would be legal parents “whether they want to be or not”, said counsel.

Ms O’Toole said that, short of finding there was a breach of a constitutional right, the court has no function in the matter, and she submitted there was no constitutional right to the legal recognition of a genetic mother.

In 2014, the Supreme Court overturned a ruling that the genetic mother of twins born to a surrogate mother was entitled to be registered as their legal mother on their birth certificates.

It was for the legislature, not the courts, to address the issues that came about due to developments in assisted human reproduction, the court ruled.

The Chief Justice at the time, Ms Justice Susan Denham, stressed the merits of the legislature addressing the legal “lacuna” about certain rights, especially those of children born via such arrangements.

Earlier this week, the Egan family’s counsel, Mícheál P O’Higgins SC, said the reliefs sought by the family are cognisant of the necessary separation of powers between the courts and the Houses of the Oireachtas.

There is no request for an order that would specify in detail the manner in which the Oireachtas should regulate international surrogacy, he told the court.

The case before Mr Justice John Jordan is expected to run for a number of days.