Irish mother’s recognition of a baby born to a Ukrainian surrogate could have “unintended consequences,” argues State

The High Court has been told that any decision it makes regarding the right to legal recognition of the genetic mother of a child born through surrogacy could have unintended consequences for all areas of assisted human reproduction.

State attorneys said the court was faced with a “deceptively simple situation” while the global issues surrounding international surrogacy were “enormously complex.”

Lead Counsel Mary O’Toole made submissions on behalf of Ireland and the Attorney General in a case involving Kathy and Brian Egan and their three-year-old genetic son who was born to a surrogate in Ukraine.

The Egans, from Castlecomer Road, County Kilkenny, allege the state violated their family’s constitutional rights by failing to offer Ms Egan a path to legal recognition as the mother of their child.

They are asking the court to declare that the lack of a way to retrospectively recognize the maternal lineage of children born through international surrogacy amounts to “implacable discrimination” against their family.

Mr Egan is the genetic and legal father of the child, who has successfully applied for a parentage certificate to the High Court. Ms Egan is the boy’s genetic mother and his legal guardian, a relationship that will legally expire when he turns 18.

The husband and wife researched international surrogacy options after Ms Egan suffered eight miscarriages, leaving them in a “hopeless situation”.

A Ukrainian woman carried and gave birth to her genetic son in 2019 through a surrogacy arrangement.

The lack of legislation in Ireland regarding surrogacy has caused the family “significant anxiety and fear”, with their worries compounded because Mr Egan was diagnosed with cancer, they said.

The appeal of the proposed rule, which would legally recognize the genetic mother of a child, is understandable in the present case, when “one cannot help but have great respect for the Egan family and great sympathy for the circumstances in which they find themselves personally,” Ms O’Toole said.

However, the matter affects the rights of other groups of people and could have “unintended consequences” for all areas of assisted human reproduction, she said.

Genetic donors who offer embryos to prospective parents for fertility purposes have no legal right to parenthood. If there was a right to genetic recognition, these donors would be legal parents “whether they want it or not,” the attorney said.

Ms O’Toole said that the court had no role in the matter other than finding that a constitutional right had been violated, and she argued that there was no constitutional right to legal recognition of a genetic mother.

In 2014, the Supreme Court reversed a ruling that entitled the genetic mother of twins born to a surrogate mother to be listed on their birth certificates as their legal mother.

It is for the legislature, not the courts, to deal with the issues arising from the development of assisted human reproduction, the court ruled.

The Chief Justice at the time, Ms. Justice Susan Denham, emphasized the merits of the legislature in addressing the legal “void” regarding certain rights, particularly in the case of children born through such arrangements.

Earlier this week, the Egan family’s attorney, Mícheál P O’Higgins SC, said the relief sought by the family was “aware of the necessary separation of powers between the courts and the houses of the Oireachtas.”

There is no request for an order detailing how the Oireachtas should govern international surrogacy, he told the court.

The case before Judge John Jordan is expected to last several days.

The judge, in agreement with the couple, has lifted the requirement of anonymity, which is customary in such cases. Irish mother’s recognition of a baby born to a Ukrainian surrogate could have “unintended consequences,” argues State

Fry Electronics Team

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