Couple take State to court over 'slow pace' of surrogacy law

Mr Egan is legally recognised as their son’s father, but Ms Egan is only recognised as his legal guardian, which will lapse, legally, when he turns 18

Kathy and Brian Egan, whose biological son was born in 2019 under a surrogacy arrangement in Ukraine, were told in a letter from the State that the proposed introduction of legislation to regularise national and international surrogacy arrangements of past and future will lead to the establishment of a human reproduction regulatory authority. Picture: Collins Courts

A couple seeking parental recognition of the genetic mother of their son born through surrogacy are proceeding with their High Court action against the State as they are unhappy with the speed in which regulation of the area is being advanced.

Kathy and Brian Egan, whose biological son was born in 2019 under a surrogacy arrangement in Ukraine, were told in a letter from the State that the proposed introduction of legislation to regularise national and international surrogacy arrangements of past and future will lead to the establishment of a human reproduction regulatory authority.

The State’s correspondence, said the Egans’ counsel Nuala Jackson SC, caused the family “considerable concern”. They will strongly submit, she said, that the legislative process is not being advanced as soon as is practicable in a way that meets the Egans’ concerns.

The couple are in a different situation to other parents of children born to a surrogate mother or people who plan to source a surrogate mother, as their case has already been reviewed by the court, said Ms Jackson, instructed by solicitor Annette Hickey. 

Mr Egan is legally recognised as their son’s father, but Ms Egan does not have the same legal recognition. She is his legal guardian, but this relationship will lapse, legally, when he turns 18. Mr Justice John Jordan scheduled the case to return in March, when he will look to fix a hearing date.

“Significant” work appears to be underway to bring about recognition of past and future surrogacy arrangements conducted domestically and abroad, he said. However, the judge noted the Egans’ concern that the letter indicates a regulatory body will have to be established and that this will take time.

He could not see why the introduction of the legislation and the establishment of a regulatory body could not be planned in “parallel” to speed up the process.

“It does seem that matters could be dealt with more expedition and priority,” he said, noting the lacuna in this area of the law was flagged years ago by the Supreme Court and elsewhere.

Charges against the State

The court heard in December that the Egans, of Castlecomer Road, Kilkenny, do not have the “luxury of time”, as Mr Egan recommenced treatment for cancer.

The Egans are asking the court to declare that the State’s failure to provide retrospective recognition of parentage of children born through surrogacy amounts to “invidious discrimination” against their family.

They also want a declaration that the State has failed to vindicate their constitutional rights by failing to recognise Ms Egan as the boy’s legal mother.