The Supreme Court has ruled that Irish public policy does not require the refusal of recognition for a Colorado stepparent adoption of two children born through a commercial surrogacy arrangement. The Court said the Adoption Authority may enter details of the adoption in the Register of Intercountry Adoptions, subject to the statutory requirements.
The case reached the Court by way of a case stated from the Adoption Authority under section 49 of the Adoption Act 2010. The Authority had referred questions about public policy arising from an application to register the adoption decree. The Court was not making a new adoption order or deciding whether the parties’ surrogacy agreements could be enforced in Ireland.
The children, identified as A and B, were born in Colorado in 2014. C, their genetic father, and D, his same-sex spouse, had entered a surrogacy arrangement there. C was declared a parent before the children’s birth. D later obtained a stepparent adoption decree from a Colorado court in February 2015. In October 2017, D applied to the Adoption Authority to register that decree in Ireland.
In the judgment delivered by Chief Justice O’Donnell on 30 March 2023, the Court considered the surrogacy arrangements as part of the context for the adoption. O’Donnell CJ said Irish public policy disapproves of commercial surrogacy and that the agreements would not be enforceable in Irish law. But recognition of a status created under the law of the parties’ domicile was a separate question. In this case, that policy did not require Ireland to refuse recognition of D’s adoptive status.
The judgment pointed to the children’s interests, the existing family relationship and the strong policy favouring recognition of status conferred by the law of a person’s domicile or habitual residence. It also noted that the surrogate had legal advice and later reaffirmed her consent in UK proceedings. The Court did not determine the enforceability of individual contractual terms or decide the separate question of whether payments fell within statutory restrictions on commercial adoptions; no party had argued that issue.
The result is limited: the Supreme Court said the Authority may be satisfied that the adoption qualifies under the 2010 Act and may enter it in the register with Colorado certification. The judgment does not create a general Irish framework for surrogacy or resolve the status of other families. O’Donnell CJ described the lack of comprehensive legislation as unsatisfactory and said legislation was urgently required.