The High Court has found that Irish citizenship law unlawfully leaves some children of Irish same-sex parents born abroad without a route to citizenship, while separately ruling that an Irish genetic mother in Spain qualifies as a parent for citizenship by descent.
The linked cases concerned three children conceived through donor-assisted human reproduction.
In the Spanish case, the Irish citizen mother supplied the egg used to conceive her younger son, while her wife carried and gave birth to him. Both women are recognised as his mothers under Spanish law. The Minister for Foreign Affairs refused the child an Irish passport because the Irish citizen was not the gestational mother.
Ms Justice Siobhán Phelan held that this interpretation was wrong. Section 7 of the Irish Nationality and Citizenship Act 1956 could properly include a genetic mother. The judge said the genetic and temporal connection existed from conception and birth, placing her in a position comparable to a genetic father already recognised by Irish law. Her parental status under Spanish law was also capable of recognition in Ireland under private international law.
A different conclusion applied to an Irish woman living in Australia whose two sons were conceived using her partner’s eggs and sperm donated by the Irish woman’s brother. Australian law recognises her as a parent from birth, but she is neither genetic nor gestational mother.
The court held that existing section 7 could not be judicially expanded to cover that relationship without crossing into law-making. However, the judge found that the wider legislative scheme produced unconstitutional discrimination. Children born abroad through donor-assisted reproduction could be treated less favourably than comparable children born in Ireland or children born abroad through traditional reproduction, without a rational basis.
The court therefore proposed declarations identifying both the correct interpretation in the Spanish case and the unconstitutional legislative gap affecting families such as the Australian applicants. It left the design of any new citizenship pathway to the Oireachtas.