Facts: A and B were a same sex couple who lived in England and had a child through gestational surrogacy. The child was conceived using eggs donated by an anonymous donor inseminated with sperm from B. The surrogate was named as the child’s mother on the birth certificate, along with B as the child’s father. The couple, A and B, obtained an order from the courts of England and Wales recognising A as the child’s parent, with a new birth certificate issued. Whereas B is a British citizen, A is both a British and Irish citizen.
A and B then applied for an Irish passport for their child. Under section 7(1) of the Irish Nationality and Citizenship Act 1956, a person is an Irish citizen if at the time of their birth, either parent was an Irish citizen. The applicants were notified of the Minister’s intention to refuse the passport application because A was not the child’s father at the time of birth. The applicants sought an order of mandamus in the High Court to direct the Minister to decide whether a passport should be issued to the child. In the High Court, Barrett J. agreed with the applicants that the child was an Irish citizen. The Minister appealed this to the Supreme Court.
Reasoning: In the Supreme Court, in the opinion of the majority, Murray J. held that A was not the child’s parent for the purposes of section 7(1) of the Irish Nationality and Citizenship Act 1956. While the order issued by the courts of England and Wales recognising A as the parent of the child could be recognised in principle by the private international law of the State, the interpretation of the term ‘parent(s)’ in Irish law depends on the language, context and objective of the specific piece of legislation. The term parent that is used in section 7(1) of the 1956 Act was held to refer only to the genetic father of the child and the birth mother.
The applicants advanced various arguments under the Constitution and the European Convention of Human Rights (ECHR), according to which the child would be entitled to Irish citizenship. Murray J. held that even if well placed, it is not possible to construe the term ‘parent’ in section 7(1) to include the child, because it would alter the legislative scheme from which it was enacted. It was held that the Court was not in a position to grant the applicants’ orders to strike down the provisions of s. 7(1) on grounds of unconstitutionality for the reasons put forward in the case and this declaratory relief was not sought by the applicants. Similarly, the Court, for the same reasons, was not able to grant a declaration of incompatibility under the 2003 Act.
In a separate opinion, Hogan J. held that absent a direct challenge to the constitutionality of section 7(1) of the 1956 Act, the appeal should be allowed and disposed of in the manner suggested by Murray J.
Decision: The Minister’s appeal from the High Court decision was allowed. A was not the child’s parent for the purposes of section 7(1) of the Irish Nationality and Citizenship Act 1956.
