Supreme Court to hear State's appeal against citizenship ruling for children of same-sex couples

The appeal stems from two separate cases determined by the High Court earlier this year that involved children born abroad to two sets of legal mothers following donor-assisted human reproduction ("DAHR"). The rulings are particularly timely given the signing into law of the Health (Assisted Human Reproduction) Act 2024 (the "2024 Act") last year. The upcoming Health (Assisted Human Reproduction) (Amendment) Bill (the "Amending Bill") is currently at an advanced stage of drafting and expected to undergo pre-legislative scrutiny in the near future, with the key aims of the Amending Bill being to provide clarity for Irish residents or citizens undertaking DAHR procedures abroad, addressing issues such as parentage and citizenship in respect of surrogacy arrangements as well as donor-assisted conception. 

Section 7 of the Irish Nationality and Citizenship Act, 1956 (as amended) (the "1956 Act") provides for the conferral of citizenship by descent where a parent is an Irish citizen, with interpretation of what "parent" means under the 1956 Act being the key point of contention considered by the High Court. The Minister for Foreign Affairs in these cases interpreted and applied the law as meaning that for the purposes of section 7(1) of the 1956 Act, the "parents" of a child born outside the State are broadly:

1. The child's birth (or gestational) mother; and
2. The child's biological father.

Separate provision is made for those children adopted by an Irish citizen.

X v Minister for Foreign Affairs & Ors

In the case of one Irish mother residing in Australia, referred to as “Ms X”, her two children born through DAHR and on whose birth certificates she is named, were refused passports because she was not their gestational mother, biological father or adoptive parent.

In refusing the application for Irish citizenship, the Minister for Foreign Affairs found Ms X did not meet the definition of “parent” under section 7 of the 1956 Irish Nationality and Citizenship Act, from which citizenship by descent can be derived. The High Court declared that Ms X, her children and her family were treated unequally because the Government failed to provide a way for her children to achieve Irish citizenship.

Z. [Suing by his Mother and Next Friend Y.] -v- Minister for Foreign Affairs & Ors

In the second case, a passport was refused for a Spanish-born child, notwithstanding the fact an Irish citizen, “Ms Y”, was the genetic mother. She was not the gestational mother, having donated her egg to her partner. The High Court determined that the Minister had erred in interpreting section 7 as excluding Ms Y as the child’s parent. Further, it was held that Irish law does not provide an appropriate mechanism by which the rights of a child born abroad via DAHR to a non-genetic, non-gestational Irish citizen mother might be vindicated.

The Minister, the Attorney General and Ireland sought to appeal these decisions to the Supreme Court, which has agreed to hear the case. It was argued that the High Court failed to properly determine the nature and extent of the State's equality obligations with a need for certainty around who qualifies as a parent or mother. They submitted that the answer to this question will affect development of the law in this area of "particular sensitivity", stating:

"Such determination will have significant implications for, and effects on, the statutory arrangements which are in place, and which will be put in place, to regulate DAHR.”

In particular as regards the High Court's interpretation of section 7 in the case of “Ms Y”, the State said such an interpretation is “novel and without precedent and is contrary to the vast majority, if not all, prior precedent”, such that:

“It introduces a considerable degree of uncertainty into the law in regard to DAHR, in particular, as to what are the exact circumstances when a genetic mother can qualify as a parent; and as to whether, for the purposes of citizenship by descent, a child can have more than one mother or have more than two parents.”

Neither family opposed the State's appeal applications, with both recognising the importance for clarification in the law and being of the view that it is in the public interest to gain certainty as to who qualifies as a “parent” under Ireland's citizenship laws.

The joint High Court decision is available here.

The Health (Assisted Human Reproduction) Act 2024 is available here.

Written by Zoe Richardson, Dena Keane and Olivia Butler.