The Adoption Act 2010, Sections 49(1) and 49(3) and A (A Minor) and B (A Minor): Adoption Authority of Ireland v C and D and the Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Mr. Justice O'Donnell
• Judgment Date: 30 March 2023
• Neutral Citation: [2023] IESC 6
• Court: Supreme Court
• Docket Number: S: AP:IE: 2022:000063

In the Matter of the Adoption Act 2010, Sections 49(1) and 49(3)

And in the Matter of A (A Minor) and B (A Minor)

Between/

Adoption Authority of Ireland

Appellants

and

C and D

and

The Attorney General

Respondents/Notice Parties

[2023] IESC 6

O'Donnell C.J.

Dunne J.

O'Malley J.

Baker J.

Hogan J.

Murray J.

Collins J.

S: AP:IE: 2022:000063

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Stepparent adoption – Registration – Public policy – Respondents seeking to register a decree of stepparent adoption in the Register of Intercountry Adoptions – Whether the recognition of the stepparent adoption was contrary to public policy

Facts: Two children were born in Colorado in the United States of America (USA) in 2014 pursuant to a surrogacy arrangement entered into by the first and second respondents, a same sex married couple living in New Jersey in the USA. The first respondent was the natural father of the children. The second respondent obtained a decree of stepparent adoption from the District Court of Colorado in February, 2015. On 25 October, 2017, an application was made by the second respondent to the appellant, the Irish Adoption Authority (the Authority) seeking to register the decree of stepparent adoption in the Register of Intercountry Adoptions (RICA) provided for by s. 90 of the Adoption Act 2010. The Authority, by way of case stated dated 7 December, 2020, in accordance with s. 49(3) of the 2010 Act, referred to the High Court for determination a number of issues relating to public policy arising from the adoption and the antecedent surrogacy arrangements in the case. The High Court (Barrett J) concluded that such foreign adoption decrees with a background of commercial surrogacy should in general be recognised absent particularly egregious factors such as prostitution, trafficking or child abuse associated with the surrogacy agreement: [2021] IEHC 784. The Authority considered that the judgment provided insufficient guidance on the public policy issues which fall for consideration when recognition is sought and it sought to appeal that decision. Leave to appeal directly to the Court of Appeal was granted to the Authority pursuant to Article 34.5.4 of the Constitution: [2022] IESCDET 89.

Held by O’Donnell CJ and Hogan J that the recognition of the stepparent adoption in the case was not contrary to public policy, and accordingly, was recognised pursuant to s. 57 of the 2010 Act. Therefore, O’Donnell CJ held that the Authority may be satisfied under s. 90(7) that the adoption was an intercountry adoption effected outside the State that complies with the requirements of the 2010 Act in relation to such an adoption. O’Donnell CJ held that the Authority may enter particulars of the adoption in the RICA together with a copy of the certification of the adoption from Colorado. O’Donnell CJ found that features of the case which tended in favour of recognition (or more precisely against denial of recognition) were the fact that the surrogacy arrangements by Irish resident couples are to some extent facilitated – and certainly not expressly prohibited or invalidated – by Irish law; furthermore, the third respondent, the Attorney General (who is on notice of applications for declarations of parentage in the surrogacy lists), submitted that public policy does not require the refusal of recognition.

O’Donnell CJ dismissed the appeal of the Authority and affirmed the decision of the High Court.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 30 ^th day of March 2023

Part I — Introduction

Background

1 . This appeal presents the question of whether a stepparent adoption order made by a court in Colorado in February 2015 is entitled to recognition in this State. The two children who are the subject of the adoption order in question, A and B, are twins. They were born in 2014 as a result of a surrogacy arrangement, the details of which I shall presently describe.

2 . The fundamental question which therefore arises is whether the recognition of an adoption order in such circumstances where the children were born as a result of a surrogacy agreement involving payments to both the genetic mother (as egg donor) and the gestational mother would offend against our notions of public policy for the purposes of the application of our rules of private international law. The recognition issue presented here is in fact one of very considerable difficulty precisely because in the context of surrogacy the contours of that public policy are themselves elusive and appear to be possibly changing. While there is no clear legislative policy on the matter, yet, as the specific details of the surrogacy agreements at issue in this appeal themselves graphically illustrate, aspects of surrogacy contracts present uncomfortable issues for our legal system. Here it must be said that the values of both the common law of contract and the Constitution have – at least as traditionally understood up to now — generally set aside themselves against what some might regard as the commodification of the human reproductive system.

3 . A further deep-rooted aspect of our public policy is that the adoption process should not be contaminated by the making of monetary payments by or to the natural parents. Section 145 of the Adoption Act 2010 (“the 2010 Act”) accordingly precludes the adopters of any child making any payment in respect of that adoption (subject to certain exceptions such as child maintenance which are not relevant here). A similar prohibition was previously contained in (the now repealed) s. 1(3) of the Adoption Act 1991 (“the 1991 Act”) insofar as it does not provide for the recognition of foreign adoptions which involve the making of payments in respect of or in consideration of the adoption of a child. (While the 1991 Act was actually repealed by the 2010 Act, this definition is nonetheless still relevant in that s. 3 of the 2010 Act defines an adoption as including a foreign adoption that confirms to the definition of ‘foreign adoption’ in s. 1 of the 1991 Act as it read on 30 May 1991.)

4 . One of the key issues identified by the Adoption Authority (“the Authority”) in these proceedings is accordingly whether the recognition of an adoption order which followed on from such a surrogacy arrangement with a payment to the gestational mother would amount, in substance, to either a violation of, or, at least, a circumvention of this statutory prohibition in a manner which contravenes the public policy of this State. While formally presented as an issue of private international law, it will be seen the Court is, to some extent, at least, obliged to confront issues pertaining to the aspects of commercial surrogacy in Irish law and the putative enforcement of those arrangements so far as our domestic law and public policy is concerned in the course of determining this appeal.

5 . Although the Court has not been provided with any precise figures, it would seem that the number of children now living in this State who have been born as a result of surrogacy arrangements made abroad can probably now be measured in the thousands. While these arrangements take many different forms, it would be surprising if many – perhaps even a significant majority — did not have at least some commercial element. Even though the law has struggled — and not for the first time — to keep pace with these scientific developments, the practice of commercial surrogacy is now so ubiquitous and widespread that the necessity for legislative regulation in this area is overwhelming. It is indeed a matter of profound regret that as of the date of the hearing of this appeal in December 2022 no such legislation had been enacted by the Oireachtas. While it is true that there have been public statements on the matter by the Government along with various reports of Oireachtas Committees, this material is really of limited assistance as under our constitutional system it is the Oireachtas alone which can change and determine the law. At the same time, the recent statement by the Government indicating that some form of recognition of commercial surrogacy agreements performed outside of this State is likely to be included in any future legislation provides some guide on the public policy issue.

6 . It gives me no pleasure at all to record that the failure on the part of the Oireachtas to address the legality and regularity of surrogacy arrangements has created an intolerable situation for the commissioning parents, the various surrogates and, perhaps, most especially, the children born as a result of these arrangements. This legislative vacuum has served to create a nether world where such parties struggle against a background of profound legal uncertainty to regulate their relationships and status by contract and by other methods such as applications to the Circuit Court for a declaration of parentage under Part VI of the Status of Children Act 1987 or, as in the present case, an application to the Authority under the 2010 Act for the recognition of a foreign adoption order.

7 . In addition to all of this, the present case also highlights the need for crucial guidance to be given by the Oireachtas regarding the consequences for the children in particular where children have been born as a result of commercial surrogacy arrangements, whether in this State or elsewhere. It is one thing to decry or disfavour or even prohibit commercial surrogacy. Yet the reality is that there are many children living in this State or who might be brought into the State born as a result of these arrangement and it is, I suggest, necessary that the Oireachtas should address this reality and give clear guidance to the courts, administrators and, above all, to these children and their families.

8 . In the absence of legislation enacted by the Oireachtas it nevertheless falls to this Court to decide whether...