‘Reluctant litigants’ halt surrogacy court case saying they are ‘heartened’ by progress of legislation

A couple seeking parental recognition of the genetic mother of their son born through surrogacy are no longer pursuing their case through the High Court as they are buoyed by progress to introducing legislation in the area.

Kathy and Brian Egan, of Castlecomer Road, Kilkenny, claimed in their action that the State’s failure to provide retrospective recognition of parentage of children born through surrogacy amounts to “invidious discrimination” against their family.

Mr Egan is legally recognised as their son Luke’s father, but Ms Egan, his genetic mother, does not have the same legal recognition. She is his legal guardian, but this relationship will lapse, legally, when he turns 18.

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

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Speaking outside the Four Courts after their case was adjourned generally, Ms Egan said she and her husband have been “so encouraged” by the legislative work that is being done.

“There is still a huge amount more work to get this over the line. On paper, I am still not Luke’s legal parent, but I do believe that day is coming very soon for me and for hundreds of families like ours,” she said.

Mr Egan’s cancer diagnosis highlighted the urgent need for this legislation, she said, adding that his treatment is going well. She wants her two sons, Harry and Luke, to be recognised equally in the eyes of the State.

“They are both of our sons ... That needs to be reflected in legislation,” she added.

In court on Friday, the couple’s counsel, Nuala Jackson SC, instructed by PKHL solicitor Annette Hickey, said they commenced litigation to establish a pathway for Ms Egan to be legally recognised as Luke’s parent.

They were “reluctant litigants” facing other challenges, said Ms Jackson, and, based on the information they have received, they have decided not to proceed further this case.

They were seeking a general adjournment of their case, with the ability to re-enter it if the need arises in future, she said.

The Egans are “heartened further” by statements made by Minister for Health Stephen Donnelly on Thursday.

Mr Donnelly told the Dáil he formal drafting process of new surrogacy legislation is well under well and he expects it will be enacted before the Dáil rises for the summer recess in July.

Mary O’Toole SC said her clients, the State parties, consented to the general adjournment.

Mr Justice John Jordan, who previously strongly criticised the Government in how it handled the introduction of this legislation, said it was “heartening” to see progress and the optimism surrounding it.

It was only right to acknowledge the Egans’ efforts and “significant achievement in generating momentum and action”, he said.

He wished the legislators well in dealing with a “complex area of law”.

“There is solid ground for optimism and for believing that this case and the Egans and Harry and Luke will not have to revisit the Four Courts,” he added.

He adjourned the case generally.