Minister ordered to decide if boy born in UK via surrogacy can have Irish passport

The High Court has ordered the Minister for Foreign Affairs to make a decision on an application for an Irish passport for a child who was born in the UK via a surrogacy arrangement.

The boy’s parents are a married same-sex couple residing in Britain. One of his fathers is a dual citizen of Ireland and the UK, but he is not a biological parent.

In a judgment, Mr Justice Max Barrett found that the child has been an Irish citizen from birth due to the citizenship of his non-biological but legally recognised parent.

In 2017, the couple applied to the Minister seeking an Irish passport for their son. The court heard they were told that a number of similar applications had been received and advice from the Attorney General was being awaited.

Later that year, a passport officer wrote to the parents indicating the department intended to refuse the application on the basis that, for the purpose of the Irish Nationality and Citizenship Act 1956, a parent was “understood to mean either the mother or father of the child or a male adopter”. The couple was invited to provide further information in advance of the decision, which they did.

The parents were told in September 2018 that the passport office was “bound by the legislation currently in place”. The couple issued High Court proceedings last year over the delay, seeking an order directing a decision from the Minister and a court declaration that their constitutional and European Convention rights had been disproportionately interfered with.

The judge found that the Minister was in breach of his statutory duty in failing to issue a decision in a reasonable time.

‘Emotional significance’

The judge noted that in submissions to the court the Irish-British parent had said it is “of great emotional significance” that his child should be entitled to the same nationality as him. The Minister had argued that the boy was not entitled to an Irish passport because he was not entitled to Irish citizenship.

The court heard that the boy’s UK birth certificate initially recorded the name of his birth mother and his biological father.

However, the England Family Court issued a parental order under the UK’s Human Fertilisation and Embryology Act 2008, which reassigned parentage from the birth mother to the boy’s non-biological father.

It follows, said the judge, that this parental status is also recognised under Irish law for the purposes of the 1956 Act. The main focus of argument during the case was the meaning and effect of section 7(1) of the 1956 Act, said Mr Justice Barrett.

The Minister submitted that a correct reading of the section should be understood to mean that the Irish citizen-parent must have been the parent at the time of birth. The boy’s parents put forward that the correct reading means that the parent must have been an Irish citizen when the child was born.