The Supreme Court has allowed the Minister for Foreign Affairs and Trade’s appeal against a High Court ruling that a child born through surrogacy was an Irish citizen by descent through his Irish citizen intended parent.
The court held that an English parental order in favour of the intended parent could be recognised in Ireland in principle. But recognition of the parent-child status for some purposes did not decide whether the intended parent counted as a “parent” under section 7(1) of the Irish Nationality and Citizenship Act 1956.
The child, identified in the judgment as C, was born in England in April 2015 through gestational surrogacy. His genetic father was B, and the woman who gave birth to him was D. A, an Irish citizen, and B obtained a parental order from London’s Central Family Court in July 2015. Under English law, it reassigned parentage to A and B and extinguished D’s parental rights.
A and B applied for an Irish passport for C in early 2017. The application had not been decided by July 2020, when they brought proceedings. The High Court later held that A was C’s parent for the purposes of the citizenship law and ordered the Minister to decide the passport application. It did not order the Minister to issue a passport.
On appeal, the Supreme Court concluded that section 7(1) uses “parent” to mean the genetic father and the woman who gave birth to the child. The court said the section required the relevant parent to have been a parent, and an Irish citizen, at the time of the child’s birth. It rejected the argument that the provision could be interpreted to include someone who became a legal parent after birth under a foreign court order.
The court also declined to use constitutional or European human rights interpretation principles to give the provision that broader meaning. The judgment said the requested interpretation would change the structure of the citizenship-by-descent scheme. It did not decide whether the provision was unconstitutional: the applicants had not sought that relief in the required form, and the necessary parties were not before the court. Nor did it grant the broader declaration proposed by the Irish Human Rights and Equality Commission, which appeared as a notice party.
The judgment noted that whether the law must provide a route to citizenship for children in these circumstances was outside the scope of the proceedings. The appeal was allowed only insofar as the High Court had decided that A was C’s parent under section 7(1).