Couple waives anonymity in case over lack of surrogacy legislation

High court reporters

A couple whose son was born to a surrogate mother have waived their anonymity in their High Court case in which they allege the State has failed to vindicate their constitutional rights by not providing a route for the woman to be legally recognised as the child’s mother.

Kathy and Brian Egan, of Castlecomer Road, Kilkenny, are asking the court to declare that the State's failure to provide retrospective recognition of parentage of children born through surrogacy amounts to "invidious discrimination" against their family.

A Ukranian woman carried and gave birth to their genetic son in 2019 via a surrogacy arrangement.

Mr Egan is the child’s genetic and legal father, while Ms Egan is his genetic mother and legal guardian, a relationship that will cease when he turns 18. She is not legally recognised as his mother.

The couple had researched surrogacy options after Ms Egan experienced eight miscarriages, and they were left in a "hopeless situation", Ms Egan said in a sworn statement.

'Legal stranger'

She stressed the urgency of her family’s situation now, as their three-year-old’s only legal parent was arranging his will after receiving an aggressive cancer diagnosis. She said her son – a "legal stranger" to her – does not stand in the same position as his sibling with regard to family entitlements.

Earlier this year, the couple was given permission to pursue their judicial review action against Ireland and the Attorney General. When the matter returned for hearing on Tuesday, Mr Justice John Jordan made an order permitting the identification of the family, which was their wish.

The family’s counsel, Mícheál P O’Higgins SC, with Mark Lynam BL, said "action or inaction" by the State has breached or threatened to breach the applicants’ constitutional rights. In such a situation the court is not only entitled but has a duty to intervene, he said.

Mr O’Higgins said the reliefs sought by the family are cognisant of the necessary separation of powers between the courts and the Houses of the Oireachtas.

Declarations

The family seeks various declarations, including one that the State has failed to vindicate their constitutional rights by failing to recognise the woman as the boy’s legal mother.

Counsel said there is no request for an order that would specify in detail the manner in which the Oireachtas should regulate international surrogacy. The applicants do not seek to override the specific functions of the Oireachtas or the State in deciding issues of policy, he added.

Ireland and the Attorney General are "best placed", he said, to determine the best procedures for creating a lawful recognition of the genetic parent of a child who was born to a surrogate mother.

The case continues on Wednesday.