‘Unique’ hearing over child born through surrogacy is adjourned

A "unique" hearing to decide the fate of a child born through surrogacy, who was later discovered to have no genetic link to a man who believed he was its father, has been adjourned at the High Court.

The child remains a ward of court and the couple, who entered the surrogacy arrangement with a woman in a foreign country, has interim guardianship. This is pending the outcome of the litigation to come before the court in January.

The absence of a genetic link between the child and couple was first learned of when they sought to bring the child into Ireland.

When the case came before President of the High Court Mr Justice Peter Kelly on Monday, he was told by Gerard Durcan SC for the State that it needs more time to get additional information concerning DNA testing before it can finalise its affidavits in the case.

In reply to the judge, counsel said there was no difficulty establishing the mother’s identity but there could be a difficulty in establishing paternity.

Issue of policy will have to be addressed and the concern was to identify what was in the best intersts of the child, counsel said.

The judge said the parents of the child would have to be notified of any application here concerning the child’s welfare.

He was told a lawyer had confirmed in writing that the surrogate mother and her husband had been notified of the proceedings and had agreed to the child being made a ward of court, but further details might be necessary.

Sarah McKechnie BL, for the Child and Family Agency, said it had been asked to arrange for an assessment of the child, had done so and there were no concerns from a child protection or welfare point of view.

When the case first came before the court last September, Mr Justice Michael Moriarty described it as unique and exceptional and imposed strict reporting restrictions preventing identification of specified details of the couple, their child (including its gender) or the identity of the country where the surrogacy arrangements was reached. Those restrictions remain in being.

In order to apply for the necessary travel documents to bring the child into the State, the couple needed to prove that the child had a genetic connection to one of its Irish parents. It was then discovered that there was no genetic link but the child was allowed into the country on a humanitarian basis.

In cases of surrogacy, parents usually apply for guardianship and a declaration of parentage but the couple was told, due to the absence of evidence of a genetic link, they would need to apply to have the child made a ward of court.

At the September court hearing, they made that application, which was supported by the State. Mr Justice Moriarty, who was told there was no suggestion of wrongdoing by anyone involved in the surrogacy procedures or in relation to the care of the child, made the ward of court order, and orders appointing the couple as interim guardians.