Walls & Toomey


Landmark Judgement in Surrogacy Case


2017.03.23

The High Court gave a landmark judgement in a surrogacy case on 5th March 2013.

The case involved a husband, his wife and her sister. The wife was the genetic mother and the husband was the genetic father of twins. The sister carried the children in her womb and gave birth to the twins. The Chief Registrar of Births refused to register the husband and wife as the legal parents and said the sister was the mother of the children in law.

The husband and the wife applied to the High Court for a declaration that they were the parents of the children. The sister supported their application. The Court heard a number of expert witnesses in the case and ultimately concluded that as the wife was the genetic mother of the children, and the court was satisfied that she was, she should be registered as the mother. The Court noted the “total absence” of any positive legislation on surrogacy and the solicitor for the couple called on the Government to bring in the much needed legislation.

The facts of this case are different to many other surrogacy situations. Firstly all the parties were in Ireland, in many other surrogacy cases couples go abroad. Secondly, the husband and wife were the biological mother and father, in many surrogacy cases, there may be egg and/or sperm donation from a third party. Thirdly, the sister supported their application, in other cases complications can arise if the parties to the “surrogacy agreement” don’t do as they agree and such agreements are unenforceable.