Woman deemed ineligible to adopt de facto children due to surrogacy births, court hears

Ireland’s adoption authority has refused to declare a woman is eligible and suitable to adopt her de facto children as they were born through a surrogacy arrangement, the High Court has heard.

The woman’s husband is the biological and legal father of the twins, while another woman donated the eggs. A Ukrainian woman carried and gave birth to them under the agreement.

The woman, who has always lived with and acted as the children’s mother, was appointed their guardian and joint custodian four years ago but is “not their parent as a matter of Irish law”, she says.

She was years previously diagnosed with cervical cancer, which required chemotherapy and a hysterectomy. In a sworn statement, she said this was a “devastating blow to us and destroyed our hopes at that time of starting a family together”.

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She applied to the Child and Family Agency (Tusla) for a step-parent adoption assessment, and the chair of the adoption committee recommended a declaration of eligibility and suitability to adopt the children.

The matter was referred to the Adoption Authority of Ireland which declined her application.

The refusal letter stated that the authority’s board “had regard to” the fact the children were born through a surrogacy arrangement. It noted there is legislation pending that is intended to regulate surrogacy agreements and “in this regard 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”.

The Bill, which intends to retrospectively recognise surrogacy, is currently at Committee Stage.

The woman, her husband and the two children have issued High Court proceedings alleging the adoption authority legally erred in refusing to declare her eligible and suitable for step-parent adoption on the bases of surrogacy and pending regulatory legislation.

They argue a declaration can be made once an applicant satisfies criteria under section 34 of the 2010 Adoption Act, which centres on the applicant being suitable to have parental rights and duties in respect of the child.

The woman meets this and other statutory criteria, but the authority has adopted an “erroneous interpretation and application” of the section 34 requirements, they claim.

In discharging its statutory functions, the adoption authority must consider the family’s constitutional right to equality and the children’s constitutional rights, which are natural and imprescriptible, the family says. It must also take into account the family’s rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, the applicants claim.

In her affidavit, the woman applying to the court says she and her husband initially looked to adopt in Ireland but were realistic about their limited chances. They began to consider surrogacy and several years ago travelled to Ukraine to begin the process with a clinic there.

They formed an “immediate mutual bond” with the Ukrainian woman who carried the twins for them, she says.

The adoption authority’s refusal to grant a declaration has caused distress to the two children and left the family in a situation of uncertainty, she says.

While she acknowledged there is legislation pending regarding assisted human reproduction, she currently has “no guarantee of whether and how this legislation will protect my family”.

The children currently live with “uncertain status” in their legal relationship with her, she adds.

On Monday, while only the applicants were represented in court, Ms Justice Niamh Hyland granted the family permission to seek judicial review of the authority’s decision.

She made an order preventing the identification of the applicants.

The applicants, represented by Patrick F O’Reilly & Co Solicitors, want the authority’s decision overturned and the court to direct that a declaration of eligibility and suitability be issued. They are also seeking damages for alleged breach of statutory duty and of their constitutional rights.

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