A woman in Ireland who was prevented from becoming the legal parent of surrogate-born twins she has raised since birth will be allowed to seek judicial review of the decision.
The children have lived with the woman and her huband for four years, after being born via surrogacy in Ukraine, using a donor egg and the husband's sperm. She applied to the Adoption Authority of Ireland to become their legal mother, but was rejected as ineligible to adopt them.
In their refusal letter, the Adoption Authority stated that due to the fact that legislation governing surrogacy is still awaited, 'it will not be in a position to progress adoption applications where a surrogacy agreement was entered into pending the commencement of the Assisted Human Reproduction Legislation'.
There is currently no legislation in force governing surrogacy in Ireland meaning that surrogacy is neither illegal nor supported by law. Legislation is being developed (see BioNews 1220) but is taking a long time: the draft bill was published over two years go with discussions going back to 2018 and beyond (see BioNews 934).
The woman had been unable to become pregnant after undergoing chemotherapy and a hysterectomy as a result or cervical cancer, which she described as a 'devastating blow to us and destroyed our hopes at that time of starting a family together'.
Currently, her husband is the children's only legal parent. The woman was appointed their legal guardian and joint custodian four years ago, but because the she does not share a genetic relationship with them she is 'not their parent as a matter of Irish law', so adoption is her only route to become their legal parent.
In response to the Adoption Authority's decision, the couple is seeking Judicial Review, and have been granted permission to apply. They claim that the Authority has made an error in its application of the law by basing its decision on the applicant's supposed failure to fulfil the criteria under section 34 of the Adoption Act 2010 due to the fact that the child was born through surrogacy. They are also seeking damages for the Adoption Authority’s breach of statutory duty and for interference with the woman's constitutional rights.
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