Supreme Court told it should consider intended legislation on surrogacy when determining adoption registration case

The Supreme Court has been told it should take into account intended legislation on surrogacy in determining whether Irish authorities are allowed to register the foreign adoption of two children born through a commercial surrogacy arrangement abroad.

The Adoption Authority of Ireland is appealing a High Court order which allowed Irish recognition of a Northern Irish man’s United States adoption of his husband’s twins.

The non-Irish father is the children’s genetic parent, while the Northern Irish man secured decrees of step-parent adoption from a state court in the US.

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 would be the children’s parents.

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The couple wants the adoption registered in Ireland as they said the Northern Irish man maintains strong connections with the island and they frequently visit with their children.

The authority is asking the seven-judge court to clarify questions of law and public policy relating to its ability to register foreign adoptions arising from surrogacy arrangements.

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.

On Thursday, Jim O’Callaghan SC, for the authority, said the court should be able to discern what Ireland’s public policy is on this issue by reading the 2010 Act alongside draft legislation that would prohibit domestic commercial surrogacy.

The draft bill on surrogacy precludes anonymous egg donations and provides for a child’s entitlement to know their origin and identity, he said.

Mr O’Callaghan pointed to the “commerciality” of the surrogacy agreement that led to the birth of the two children. The gestational mother was not allowed to have an abortion without the permission of the intended parents and could not leave the US state during certain periods, he said.

The court should consider whether or not it is public policy to permit payments made in surrogacy arrangements prior to an adoption registration, he submitted. While no money was exchanged as part of the step-parent adoption, payments were made if you consider the “whole process”, including the surrogacy which gave rise to the adoption, he said.

Responding, Eoin McCullough SC, for the two children and their parents, said this was an “inappropriate” case for the authority to use as a “vehicle to get general guidance” on wider issues of surrogacy and adoption.

“This was an application that met the requirements and for which recognition could not be refused,” he said, adding that there was no concern in this case about the children maintaining contact with the surrogate mother.

The Act provides for a “presumptive recognition” of a foreign adoption if public policy is unclear or cannot be discerned, he said. There is “no discernible public policy” in relation to surrogacy, and in particular commercial surrogacy, he submitted.

Mr McCullough said the authority must give “very great weight” to the best interests of a child when considering whether to register a foreign adoption.

The judges spent some time questioning to what extent the 2010 Act requires the authority to examine the circumstances of a birth.

Mr McCullough said the adoption should be in line with public policy, while issues of surrogacy were of “limited relevance”.

Mr Justice Maurice Collins pointed to the fact the gestational mother was not their legal mother by the time the US step-parent adoption order occurred. Her consent to the adoption was part of the gestational carrier agreement for which she was paid, which was allowed under local law, he said.

Such circumstances leading to an adoption “must surely be relevant” to the issues before the court, he asked.

The case continues on Friday before Chief Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley, Ms Justice Marie Baker, Mr Justice Gerard Hogan, Mr Justice Brian Murray and Mr Justice Collins.