A same-sex couple’s son born in the UK under a surrogacy arrangement does not derive Irish citizenship from his non-biological Irish-British father, the Supreme Court has found.
In a ruling that overturns a High Court decision, the court held that the non-biological father, who secured a post-birth parental order in an English family court, is not classified as the boy’s “parent” under the Irish Nationality and Citizenship Act of 1956.
In a judgment on behalf of the five-judge court, Mr Justice Brian Murray held that the term “parent” in the 1956 Act refers to the boy’s genetic father and the surrogate birth mother.
The boy’s UK birth certificate initially recorded the birth mother, who was not engaged in a commercial capacity, and his biological father, who is British.
“It is not without some reluctance” that the court concluded the child is denied an important legal status, Mr Justice Murray added.
However, this is what the law provides in circumstances where the legal relationship between the child and his non-biological father does not arise directly under Irish law but under the law of another jurisdiction, he said.
Surrogacy law
Irish law does not give citizens domiciled here a facility equivalent to the parental order issued under the UK’s Human Fertilisation and Embryology Act 2008, said the judge.
If Irish law empowered courts here to make such parental orders, “significant issues” would arise under Article 40.1 of the Constitution which states that all citizens shall be held equal before the law if the Oireachtas were to then deprive children of this type of parent of citizenship enjoyed within other families, he said.
The married couple brought High Court proceedings in 2020 seeking, among other declarations, an order directing the Minister for Foreign Affairs to make a decision on their 2017 application for an Irish passport for their son.
A passport officer had indicated to the couple in late 2017 that the department intended to refuse the passport application because of the 1956 Act’s definition of a “parent”.
The High Court found the boy, who lives in Britain with his parents, has been an Irish citizen from birth due to the citizenship of his non-biological but legally recognised father. Mr Justice Max Barrett ruled that the Minister was in breach of his statutory duty in failing to issue a decision in a reasonable time.
Under section 7(1) of the 1956 Act a person is an Irish citizen “if at the time of his or her birth either parent was an Irish citizen”.
Mr Justice Barrett was persuaded by the couple’s argument that this required the non-biological soon-to-be father to be an Irish citizen at the time of the boy’s birth. He did not need to be the child’s legal father at the time of the birth, they submitted.
The Minister had argued the boy was not entitled to an Irish passport because he was not entitled to Irish citizenship.
The Minister, represented by barristers Gerard Durcan SC and Sarah Fennell, appealed directly to the Supreme Court.
On Tuesday, the Supreme Court said it agreed with the Minister’s argument that the High Court did not have sufficient regard to the importance and true meaning of the words “from birth” and “at the time of his or her birth” in section 7(1) of the 1956 Act.
Mr Justice Murray could not see any reason why these words were intended to mean “anything other than what they at first glance suggest”: that all the conditions for acquiring citizenship must be present from the time of the child’s birth.
The biological father and birth mother are the parents referred to in the 1956 Act, the judge said. Another woman donated the egg, but it was not necessary for the court to consider this genetic mother’s status under the 1956 Act, he said.
The Irish Human Rights and Equality Commission (IHREC), which was joined as a notice party in the Supreme Court, asked the court to consider declaring that, by failing to provide a surrogate child whose non-genetic parent is Irish with a legislative route to birth right citizenship, the State has breached this boy’s constitutional rights.
Mr Justice Murray said the court cannot consider this for several reasons, including that the applicant couple did not seek this relief. More fundamentally, he said, IHREC’s request invited the court to “step into a significant policy debate” which cannot be allowed without the State having an opportunity to adduce evidence on the issues.
Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton and Mr Justice Séamus Woulfe agreed with the judgment. Mr Justice Gerard Hogan delivered a concurring judgment with which Mr Justice Woulfe agreed.
In his shorter judgment, Mr Justice Hogan said that while the failure of the Oireachtas to allow for citizenship by descent in a case like this raises an “acute constitutional issue” it is inappropriate to proceed further on this issue when it has not been raised by the applicant couple.
