Supreme Court: Recognition of foreign adoption orders of children born by surrogacy is not contrary to public policy

About this case:

• Citation:
  [2022] IESC 6
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Donal O'Donnell

Delivering the main judgment in the proceedings, Chief Justice Donal O’Donnell outlined that the absence of any legislation in the area of surrogacy recognition was “profoundly unsatisfactory.” The court stated that the situation was “very distressing” for those who sought to register intercountry adoptions. Further, the court said that a mature society should be in a position to formulate policy on a complex and sensitive area of law.

Background

Mr C and Mr D were a married couple from England and Northern Ireland respectively. In order to have children, they entered into a surrogacy arrangement in Colorado, where they lived. Children A and B were born, where Mr C was the genetic donor and Ms E was the surrogate who carried the children to term. The eggs used in the surrogacy belonged to Ms F.

The surrogacy arrangement was a commercial arrangement with up to $50,000 being paid as “surrogate base payments”. The couple used an agency based in Texas and paid $11,500 to the company to assist in finding an appropriate surrogate.

In respect of Ms F, the parties signed a “Known Egg Donor Agreement” which confirmed that the couple would be the intended and sole legal parents of the child arising from the donation. A fee of $7,500 appeared to be paid to the donor.

The couple also entered into a “Gestational Carrier Agreement” with the surrogate, where again it was agreed that the couple would be the sole parents of the child. The agreement also contained clauses on matters such as what the surrogate could eat and having intercourse during certain periods.

During the pregnancy, the couple brought a petition before the Colorado courts, seeking an order that Mr C be declared the father of each unborn child. The surrogate filed a document in the proceedings where she unequivocally waived any entitlement to legal rights in respect of the children.

An order was made the Mr C was the father of the children, while Mr D was registered was added as legal stepparent following the birth of the children. Legal opinion was provided which outlined that the declaration of non-maternity by the surrogate meant that, as a matter of US law, she was not regarded as having any parental rights.

The couple later obtained parental orders from the courts of England and Wales which recognised the legal parentage of the children. Since Mr D was from Northern Ireland and spent time with his children in the State, an application was made to the Irish Adoption Authority seeking to register the decree of stepparent adoption from Colorado.

Having regard to the fact that there was no provision for commercial surrogacy in Irish law and that section 145 of the Adoption Act 2010 prohibited commercial adoptions, a case stated was made to the High Court on whether the State recognised the parentage of Mr D. The High Court concluded that foreign adoption decrees with a background of commercial surrogacy should be recognised in general, absent egregious factors such as prostitution or child abuse.

The Adoption Authority appealed the decision on the grounds that it provided insufficient guidance on public policy issues which fell to be considered when recognition is sought.

Supreme Court

The Chief Justice began the judgment by noting that it was “profoundly unsatisfactory” that there was a complete absence of legislation in the area and that the matter had to be dealt with by judicial proceedings. The court emphasised the stress involved for individuals in legal proceedings and outlined that many Irish citizen had effected foreign surrogacies who did not know what their legal status was.

It was said that “a mature society should be in a position to formulate its own policy on the many ethical and moral issues that the developments in science present, and where further developments can be clearly anticipated”. While there may be a wide range of views on surrogacy, it was “unacceptable” that there was not legislation to address the position at all.

It was noted that the Government had produced a Health (Assisted Human Reproduction) Bill 2022 which proposed a detailed system of regulation for domestic surrogacy. It was not appropriate for the court to comment on the legislation, but it was “beyond argument” that some form of legislation was required. Inertia was not a viable option at this point, the court said.

Mr Justice O’Donnell also pointed out that the parties had agreed in the High Court that the background of surrogacy was entirely irrelevant to the issue of public policy in the case regarding the stepparent adoption order. However, it was clear that the surrogacy arrangements were closely linked to the adoption and it was unsatisfactory that the issue had not been raised before the High Court.

It was outlined that the commercial surrogacy agreements may be unenforceable in Ireland on public policy grounds. The agreements in the case raised “troubling and difficult issues of restrictions on core aspects of autonomy” but the court held that it was not necessary to assess the enforceability of the individual provisions.

The central issue in the case was whether the commercial nature of the surrogacy agreement (unenforceable on the grounds of public policy) could also require a refusal to recognise the status of Mr D as the adoptive parent of the children.

It was determined that there was no public policy bar to the recognition of Mr D as the legal parent of the children. The court held that there was a strong public interest in “recognising the status accorded to a person by the law of their domicile and/or habitual residence”. This policy was explicitly stated in the 2010 Act. Further, the court held that only public policy which was “very clear and strong” would justify the denial of a status which a person legally obtained in their domicile/habitual residence.

It was also important to recognise the status of children and to avoid leaving them parentless or stateless (see Whittington Hospital NHS Trust v. X.X. [2021] A.C. 275). The court also held that Article 42A of the Constitution was also a factor to consider in determining whether the recognise Mr D’s status as parent.

Additionally, Mr Justice O’Donnell reasoned that the jurisprudence of the European Court of Human Rights was clear that some level of recognition must be provided. However, the jurisprudence was not decisive in this case since Irish law did not prohibit surrogacy and provided a level of legal protection for children and intended parents.

It was also significant that the agreements in this case made no provision for post-birth consent to adoption, the court said. The surrogate had legal advice and there was no reason to think that her consent was improperly obtained, even though it was always a requirement of Irish law that consent of the birth mother to adoption was required after birth.

The subsequent re-iteration of the surrogate’s consent to adoption was also significant in the case, the court said. While Irish law only facilitated surrogacy to a limited extent, some element of commerciality was inherent to such arrangements, the court said. It would require very strong considerations to penalise the applicants for availing of surrogacy which was provided for in Colorado, the court said.

Conclusion

The court concluded by confirming that public policy was no bar to recognising the parentage of Mr D in the case. In dealing with the state of the law, the court said: “The difficulty of the balancing exercise in this case and the inadequacy of the tools available to the court are a stark illustration of the fact that the current state of the law should satisfy no one.”

In the Matter of A (A Minor) and Ors. [2023] IESC 6