Urgent recognition of motherhood sought for surrogate-born child whose father is ill

Parents of an Irish child born via international surrogacy are asking a court to recognise his mother as a legal parent.

Kathy and Brian Egan's younger son was born in 2019 after an embryo created from their own gametes was carried by a Ukrainian surrogate. Mr Egan was recognised as the child's legal father, but Irish law only permits Ms Egan to be recognised as his legal guardian. Following Mr Egan's diagnosis with an aggressive form of cancer, the couple is trying to give their child another legal parent.

The Egans have applied to the High Court for a declaration of parentage, with the couple's lawyer Mícheál O'Higgins claiming the state's failure to provide a pathway to legal parenthood following international surrogacy amounts to 'invidious discrimination,' against the family.

Lawyers for the state, however, argued that if the court grants legal motherhood to Ms Egan, this could have significant consequences for other areas of assisted reproduction, such as donor conception:

'While it is a simple matter to simply assert that the child at the centre of the case is entitled to the recognition (of his genetic mother) as a matter of constitutional right, that leaves aside a whole range of other issues which are not part of the case before the court,' said senior counsel Mary O'Toole.

The Egans have an older son who Ms Egan carried. The two children, who are genetically full siblings, have different legal relationships with their mother. Ms Egan is the elder son's legal mother, but her legal guardianship of her younger son will only last until he turns 18.

In 2014, Ireland's Supreme Court overturned a decision that the genetic mother of twins born via surrogacy was able to be registered on their birth certificates as the legal mother. The court ruled it was the responsibility of the legislature to address issues arising from assisted reproduction, but no such legislation has been passed.

Ireland's Health (Assisted Human Reproduction) Bill 2022 published in January, did not contain any provisions for children born via international surrogacy arrangements.

A Joint Oireachtas (Governmental) Committee was established in response to pressure on the government to address issues arising from surrogacy abroad. They have produced a report suggesting a pathway to legal parenthood for children born via international surrogacy, but no resulting legislation has yet been presented.