Judge welcomes ‘impressive’ progress on surrogacy legislation while urging speed

A judge has welcomed “impressive” progress in plans to introduce legislation to recognise international surrogacy while urging the process to be expedited.

Mr Justice John Jordan said the Kilkenny family that has brought a case over the State’s failure to provide retrospective recognition of parentage of children born through surrogacy does not have the “luxury of time”.

Kathy and Brian Egan, who have a child born in 2019 under an international surrogacy arrangement, were not in court on Wednesday as Mr Egan has recommenced treatment for cancer.

Mr and Ms Egan are the young boy’s biological parents. While Mr Egan is also his legal father, Ms Egan is not recognised legally as his mother. She is his legal guardian, but this relationship will lapse, legally, when he turns 18.

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They claim the State’s failure to enable legal recognition of Ms Egan as their son’s genetic mother amounts to discrimination and a breach of the rights under the Constitution and the European Convention on Human Rights.

Their case was adjourned last week, when the court heard that significant progress has been made in preparing legislation to deal with surrogacy recognition and other issues at the centre of the Egans’ action.

On Wednesday, a letter from the Chief State Solicitor, parts of which were read to the court, noted: “Notwithstanding the complexities involved, the Government is committed to progress the much-needed and long-awaited piece of historic legislation as quickly as possible”.

The family’s senior counsel, Nuala Jackson, instructed by solicitor Annette Hickey, said the update from the State may not assist the Egan family.

She said the letter conveyed that retrospective recognition of surrogacy arrangements will not occur until the proposed Assisted Human Reproduction Regulatory Authority is established and operational.

No definite timeline for this was available and, given the Egans do not have time on their side, she was asking for the case to continue next year.

Mr Justice Jordan said the letter indicates “significant progress” has been made in the area since the hearing of the Egans’ case commenced in October.

Undoubtedly, the family wants a more defined timeline for the introduction of the retrospective recognition but the legislation is a matter for Government, he added.

The judge, who previously criticised the lack of legislative progress in the area, said he hopes the Government’s commitment to introducing the “long-awaited and historic legislation” is a consolation to the Egan family, who he said has taken a “principled stand” from the outset of their case.

The delay in introducing the legislation should be viewed through the prism of the Egan family’s situation, with Mr Egan “as we speak being in [ ...] hospital receiving treatment for what appears to be a very significant illness”, he said.

Expedition in progressing the legislation should be measured in “days and weeks rather than months and years”, he said.

He hopes that progress between now and January 23rd, when the case is due to return to court, will be as “impressive and definite” as the progress to date.

“It is remarkable what can be done and what has been done in situations of urgency by the legislature when there is an acknowledgment of the importance of urgency,” he added.

Mary O’Toole SC, for the State, said it was a matter for the Egans if they wanted to continue the hearing of their case in the new year.

Expedition was not necessarily in her gift, but she would communicate the judge’s comments to her clients, she said.

The case was adjourned to a date in January.