The High Court has ruled that a child born in the United Kingdom through a surrogacy arrangement has been an Irish citizen from birth under section 7(1) of the Irish Nationality and Citizenship Act 1956. It ordered the Minister for Foreign Affairs and Trade to decide the child’s Irish passport application, which had remained outstanding since early 2017.
The judgment was delivered by Mr Justice Max Barrett on 2 December 2021 in judicial review proceedings brought by A, B and their minor son, C. The family’s identities are anonymised in the judgment. A holds Irish and UK citizenship; B is a UK citizen. They and C are domiciled in England.
The child was born in the UK following a lawful surrogacy arrangement. The judgment records that a UK parental order later reassigned parentage to A and B under UK law, and that a revised birth certificate was issued. The court accepted A as a parent for the purposes of section 7(1), relying on the law of domicile and the parental order.
The Minister had argued that the relevant Irish-citizen parent needed to be the child’s parent at the time of birth. The applicants argued that section 7(1) requires the parent to have been an Irish citizen when the child was born, while allowing parenthood to be established later. The court found the section capable of more than one interpretation and applied a purposive reading. It concluded that the provision’s purpose was to prevent a person who became an Irish citizen later in life from passing citizenship to children born before that change—not to prevent later changes in parental status.
The court also considered European human-rights case law on recognition of relationships formed through surrogacy. It said Ireland must provide a means for the child to access the Irish nationality of A, and found no evidence of another practical route in this case. The constitutional arguments were not adjudicated because the court resolved the parenthood issue under the statute.
The passport application had been made in early 2017. The court found the Minister had breached the statutory duty to decide it within a reasonable time. It rejected the Minister’s argument that the judicial review was out of time, finding that no formal decision had been made and the delay was ongoing. The court said there had not yet been non-compliance with the separate requirement to give written reasons for a refusal, because no refusal had been issued.
The court granted an order of mandamus requiring the Minister to decide whether to issue a passport. It did not order a passport to issue directly, saying that a decision to appeal could affect the next steps. The parties were to be heard on costs and any submissions on damages, which the applicants had claimed but which had not been addressed in submissions.