The Supreme Court allowed the Minister for Foreign Affairs and Trade’s appeal in a case about whether a child born through a surrogacy arrangement could obtain an Irish passport through descent from a non-genetic parent who became the child’s legal parent after birth.
The applicants are identified in the judgment as A, B and C, a minor suing through A. A and B are married and live in the United Kingdom. The judgment describes A as an Irish citizen and B as a British citizen and the child’s genetic father. An English court later made an order recognising A as C’s parent. The Supreme Court judgment says that order is entitled to recognition in Ireland under private international law.
The applicants sought an order of mandamus compelling the Minister to grant C an Irish passport. Justice Gerard Hogan, agreeing generally with Justice Donal O’Donnell Murray’s reasoning, said section 7(1) of the Irish Nationality and Citizenship Act 1956 required a parent to be an Irish citizen “at the time of” the child’s birth. A became C’s parent only after that birth, so the provision did not give C citizenship by descent on the basis advanced. Hogan said the court could not use the constitutional “double construction” approach to read those words out of the law.
Hogan noted that the applicants had not directly challenged section 7(1) as unconstitutional. He said that such a challenge would have been necessary to remove the statutory condition, and that proceedings raising constitutionality required service on the Attorney General. He also said a declaration that the law was incompatible with the European Convention on Human Rights would not itself remove the provision or enable the court to order the passport’s issue.
Hogan said the case raised constitutional equality questions, including under Articles 9.1.3, 40.1 and 41.4, concerning the treatment of same-sex married couples and non-genetic parents. He did not decide those questions. He also agreed that the Irish Human Rights and Equality Commission, which had been joined as a notice party, could not expand the appeal by introducing a constitutional argument the parties had not previously raised.
The court allowed the appeal and agreed that it should be disposed of in the manner set out in Murray J’s judgment. This source is Hogan J’s separate judgment and does not include Murray J’s full disposal, so the precise formal order is not stated here.