No policy barrier to recognising foreign adoption orders for children born via surrogacy, Supreme Court rules

Chief Justice says inertia with regard to legislating area of surrogacy ‘not a viable option even in the near term’

There is no existing public policy barrier to recognising a Northern Irish man’s overseas stepparent adoption of his husband’s genetic twins born through a commercial surrogacy arrangement, the Supreme Court has ruled.

A woman donated an egg, while another woman in the US carried and gave birth to the children pursuant to a lawful commercial arrangement that agreed the couple were the intended parents.

On Thursday, the seven judges unanimously held that, even though aspects of the gestational carrier agreement would or could prove unenforceable in this State on public policy grounds, this would not necessarily dictate that children born under such agreements should not be recognised here.

There were also no issues of enforceability arising from the fact the birth mother’s consent to the adoption was given prior to the births, they ruled. Significantly, the surrogate mother reiterated long after the birth of the children her consent to surrender all parental rights, the court said.

It was “profoundly unsatisfactory”, it added, that the absence of legislation in this area means these issues must be resolved by judicial proceedings.

The judges dismissed the appeal by the Adoption Authority of Ireland against a High Court order that facilitated Irish recognition of a stepparent adoption order made by a US state court in respect of the Northern Irish man and the two children.

The authority wanted clarity on points of law and public policy relating to its ability to register foreign adoptions arising from surrogacy arrangement.

Under the Adoption Act of 2010, the authority may recognise a foreign domestic adoption “unless contrary to public policy”. There is a prohibition under the Act against “receiving, making or giving certain payments and rewards” as part of an adoption agreement.

Giving one of two rulings on behalf of the court, Chief Justice Donal O’Donnell said this adoption complies with the requirements of the 2010 Act and may, therefore, be entered in the Register of Intercountry Adoptions.

The judge said it was “very distressing” for the family involved that this question remained unresolved for more than five years of the children’s lives. The issues raised also affect a wider cohort of people, and it should be a matter of “more general concern” that the State has “no clear legislative provisions relating to surrogacy”, he said.

“As a society, we should be able to decide what surrogacy arrangements may be permitted in Ireland, what regulation is required, and what surrogacy arrangements in other countries will be recognised and given effect to,” he added.

Surrogacy, and in particular commercial surrogacy, raises “many important and complex legal, social, and moral issues” about which different people and societies take different positions, Mr Justice O’Donnell went on.

There is no international consensus about these issues and it is not the function of the court to express a view, he said.

“What is surely unacceptable, however, is that legislation should not address the position at all.”

He noted the court was furnished with the Health (Assisted Human Reproduction) Bill of 2022 which proposes a detailed system of regulation for domestic surrogacy.

The judges were also informed of the Government’s intention to arrange for the enactment of legislation for recognition of overseas surrogacies and a proposal to permit surrogacies containing some commercial element.

Whatever regime is ultimately adopted by the State, it is “surely beyond argument that some legislation in this regard is now urgently required”, Mr Justice O’Donnell said, adding “inertia is not a viable option even in the near term”.

Dealing specifically with the case before the court, the judge said the stepparent adoption “cannot be isolated” from the surrogacy arrangement.

Public policy would not permit the enforcement in Irish law of the gestational carrier agreement due to its commercial nature, he held. Among the agreement’s terms were provisions that the surrogate woman would relinquish all parental rights to the children, would refrain from certain activities during stages of pregnancy and would not terminate the pregnancy accept for some necessary medical circumstances.

There is a “clearly detectable” public policy in relation to surrogacy, including commercial surrogacy, the judge said. He also identified a clear policy against the commercialisation of arrangements of adoption, donation of genetic material, and the recognition of commercial foreign adoptions.

It is in his view “unavoidable” that the same policy exists in respect of commercial surrogacy.

This “reasonably clear” public policy on surrogacy is not an impediment to recognising the adoption order in this case, he said.

The 2010 Act affords a form of presumption in favour of recognising the adoption order and only very clear public policy would justify denying the status afforded a person by the law of their domicile, he said.

Article 42A.4 of the Constitution further supports recognition with regard to the interest in safeguarding the children, he said.

In a largely concurrent judgment, Mr Justice Gerard Hogan said there are clearly aspects of commercial surrogacy that do not sit easily with Ireland’s legal and constitutional traditions, “specifically, what some might regard as the commodification of the female reproductive system”.

However, there is no clear policy to justify withholding recognition of foreign adoption orders for children born pursuant to surrogacy arrangements.

Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley, Ms Justice Marie Baker, Mr Justice Brian Murray and Mr Justice Maurice Collins agreed the appeal should be dismissed.

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