The children in these proceedings, who are designated by the initials A and B, were born in Colorado in the USA in 2014 pursuant to a surrogacy arrangement entered into by C and D, a same sex married couple living in New Jersey in the USA. C is the natural father of the children. D obtained a decree of stepparent adoption from the District Court of Colorado in February, 2015.
On 25 October, 2017, an application was made by D to the Irish Adoption Authority seeking to register the decree of stepparent adoption in the Register of Intercountry Adoptions (RICA) which is provided for by s. 90 of the Adoption Act 2010. The RICA is principally directed towards the recognition of Hague Convention compliant foreign adoptions effected by Irish domiciled adopters. However, it also contemplates the registration of, what the High Court judgment usefully described as, foreign domestic adoptions, that is adoptions effected under the law of the country of domicile of the adopters and the child.
Ms E was the surrogate who carried the children to term. The eggs used in the surrogacy were donated by another woman, 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.
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. However, 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.
The central issue in the case as it was brought before the Supreme Court 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.
The judgment of O’Donnell CJ said that public policy in Ireland in this area is clearly developing to the point where an Oireachtas Committee has recommended recognition of foreign surrogacies including those which were organised on a commercial basis, and the Government has announced its intention to legislate to that effect. Taking into consideration the pace and direction of change and the strong policy against refusal of recognition of a status conferred by the State of domicile, the judgment considered that the Adoption Authority is not required to refuse recognition of these adoptions.
Notwithstanding, O’Donnell CJ commented that while this approach was sufficient to determine this case, he reiterated that it was “profoundly unsatisfactory” that there was a complete absence of legislation in the area. O’Donnell CJ ended the judgment by observing that,
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.
Link to the Judgment of O’Donnell CJ in In the Matter of A (A Minor) and Ors. [2023] IESC 6