Irish father wins surrogacy case over child born in India

An Irish man has won his High Court bid to be declared the father and guardian of a two-year-old girl born in India, under a surrogacy arrangement.

The child is also entitled to an Irish passport, Mr Justice Henry Abbott ruled.

In a judgment yesterday, Mr Justice Abbott outlined his reasons for granting the child’s appeal, brought via the man as her biological father, against the Circuit Court’s refusal of the orders sought.

The child was conceived via in-vitro fertilisation using the man’s sperm and an anonymous donor egg.

The fertilised egg was carried to birth in autumn 2010 by an Indian woman on foot of a surrogacy arrangement involving that woman, the man and the man’s partner.

Both the man and his partner, a widow, were named as the child’s father and mother on her birth certificate, which was issued in New Delhi, India.

Child’s entitlement

In the proceedings, it was argued the child is entitled to be recognised as an Irish citizen under the Irish Nationality and Citizenship Act 1956.

Before an Irish passport could be issued, the man was advised by the Department of Foreign Affairs that a declaration of parentage must be obtained for the child from the courts here.

The Attorney General was joined to the Circuit Court case so as to ensure any order made would be binding on all State parties.

The man’s partner was also joined because of her involvement in the surrogacy arrangements in India and because she is caring for the child.

The surrogate mother had indicated her consent to the orders being sought in the case.

Probability

In his judgment, Mr Justice Abbott said he was satisfied from the genetic tests that there is a 99.999 per cent probability the man is the biological father of the child.

He was also satisfied the child has habitually lived since birth with the man and his partner. They cared for the child on a daily basis and occupied the role of holders of parental responsibility for the child within the meaning of the relevant Brussels II regulations, he said.

He also found that the surrogate mother had had no role other than as a surrogate and was extremely unlikely to seek to play any parental role in relation to the child in the future.

Interests of child

Noting the interests of the child were of paramount importance under the Guardianship of Infants Act, the judge said he was satisfied the best interest of the child was to be cared for and reared in the “so called de facto family” of the man and his partner.

He was also satisfied it was in the child’s best interest an Irish passport be obtained for her.

Given the child’s age, it was inappropriate to seek to hear her views, the judge added.

On the basis of his findings, the judge declared the man is the father of the child and appointed him as her guardian. He also directed that the existing custody arrangements involving the child being cared for by the man’s partner should continue.

The surrogate mother’s consent was not required for the issuing of a passport to the child, he also directed. He considered it was in the best interests of the child she would get an Irish passport.