Supreme Court Ruling on Surrogacy

This is a case in which the Adoption Authority sought guidance from the High Court and, on appeal, to the Supreme Court, on issues of public policy arising around the recognition of adoption of children born by surrogacy. The Supreme Court determined that there was not strong enough evidence to require the Authority to refuse recognition of the adoptions on the basis of public policy concerns.

A key issue identified by the Adoption Authority was whether the recognition of an adoption order which followed on from a surrogacy arrangement with a payment to the gestational mother would amount to a circumvention of the statutory prohibition on payments in respect of adoption.

The Court was of the view that a legal status conferred by the state of domicile, that being the state where the permanent home and principal residence is, ought to be recognised unless there is an overwhelming statutory or public policy reason to reject it.

It is important to note that the Court focused on the status of a foreign adoption order, rather than on the legality of the surrogacy agreement behind that order.

The Court listed several public policy factors which weighed in favour of recognising the adoption order to include:

1. A strong public policy interest in recognising the status accorded to a person by the law of their domicile and/or habitual residence, which apply with even greater force in a globalised world
2. The importance of recognising the status of children born and seek to avoid leaving them parentless and perhaps stateless
3. Article 42A of the Constitution which recognises the importance of children’s rights

However, the Chief Justice also noted that there were strong public policy reasons against the commercialisation of surrogacy in Ireland and the prohibition on commercial adoptions in the state. The proposed Bill seeks to prohibit commercial surrogacies in Ireland.

This judgment is of particular importance in light of the Health (Assisted Human Reproduction) Bill 2022 (the Bill). We examined the Bill and the current legal position of surrogacy in Ireland previously. Although the Bill was acknowledged by the Chief Justice, he cautioned against giving much weight to the policy expressed in the Bill as representing current public policy.

The Chief Justice also noted that nothing in the Supreme Court’s judgments should be understood as restricting the freedom of decision making on the part of the Oireachtas.

Therefore, although this judgment is useful in assisting decision makers in this area, the short term, as the Chief Justice noted “it is far from a satisfactory resolution of issues which are of critical importance to individuals.”

Conclusion

This case once again highlights the need for legislation covering surrogacy. The Chief Justice remarked that 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”.

It is hoped that the Bill will help bring this much needed clarity to the judiciary and participating families alike. For more information on the Bill, see our previous article here.

For more information on the legal implications of assisted human reproduction, contact a member of our Public, Regulatory & Investigations team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.