Citizenship by Descent for Donor-Conceived Children: Recognising Genetic Mothers and Remedying a Constitutional Lacuna

Introduction

In X. v Minister for Foreign Affairs & Ors and Z. (by his mother and next friend) v Minister for Foreign Affairs & Ors [2025] IEHC 214, the High Court of Ireland (Siobhán Phelan J.) examined whether children born abroad to same-sex couples via donor-assisted human reproduction (DAHR) may claim Irish citizenship by descent under section 7(1) of the Irish Nationality and Citizenship Act 1956. Two families, one based in Australia (“X family”) and one in Spain (“Y family”), had Irish citizen parents who were neither the gestational mother nor the biological father at birth. The Minister for Foreign Affairs refused their passport applications on the ground that “parent” in section 7(1) meant only the birth (gestational) mother or the genetic father. The court was asked both to interpret section 7(1) in conformity with modern family realities and to assess whether the absence of a legislative route for these parental situations breached constitutional equality and family-life guarantees.

Summary of the Judgment

The High Court reached three core conclusions:

Section 7(1) of the 1956 Act does include an Irish genetic mother whose parental status derives from a DAHR procedure abroad and is recognized under the law of domicile. The Minister must treat her like a genetic father for citizenship by descent.
Section 7(1) does not extend to non-genetic, non-gestational parents even where a foreign court or the Children and Family Relationships Act 2015 might recognize them retrospectively. Expanding the provision that far would rewrite its structure, contravening legislative intent and separation-of-powers principles.
By failing to provide any legislative pathway for the children of Irish citizens born abroad via DAHR (other than genetic mothers and fathers), the State has created an irrational discrimination in breach of Article 40.1 of the Constitution (“all citizens … equal before the law”). A declaratory remedy was granted, leaving it to the Oireachtas to legislate a fair, non-discriminatory citizenship-by-descent scheme for these families.

Analysis

Precedents Cited

A, B & C (A Minor) v Minister for Foreign Affairs [2023] IESC 10 – Supreme Court held “parent” in section 7(1) meant genetic father and birth mother; declined to extend it to non-genetic legal parents acquired by order after birth.
M.R. & Ors v An tArd Chláraitheoir [2014] IESC 60 – Supreme Court reaffirmed “mater semper certa est” for birth registration and limited “mother” at common law to gestational mother.
Fleming v Ireland [2013] IEHC 2 & Donnelly v Minister for Social Protection [2022] IESC 31 – Equality analysis under Article 40.1; differential treatment must be rationally justified.
Adoption Authority of Ireland v C & D [2023] IESC 6 – Private international law recognition of foreign status, subject to public policy.

Legal Reasoning

The court’s interpretative exercise proceeded in stages:

Text, context and purpose of s. 7(1): Historically framed to implement a jus sanguinis principle under Article 9, the phrase “either parent … was an Irish citizen at the time of birth” carried a temporal and biological focus.
Double-construction rule: Where two readings are open—one constitutional and one not—the judge should favor the former. However, it must not rewrite the statute or alter its fundamental scheme (East Donegal Co-op Ltd v AG).
Role of Interpretation Act 2005: Section 6 allows accommodation of social and technological changes “only in so far as text, purpose and context permit.” The court found that extending s. 7(1) to non-genetic, non-gestational parents would distort its core structure.
Private international law: Children recognized as genetic off-spring under foreign law are equivalent to Irish-born genetic children and must be recognized absent public policy objections. The genetic mother in the Spanish case fit that test.
Constitutional equality (Article 40.1): Denying citizenship by descent to children born abroad via DAHR (while granting it to similarly-situated genetic fathers or gestational mothers) is arbitrary, irrational and discriminatory. No status-based justification existed.
Separation of powers: Although the court declared the lacuna unconstitutional, it deferred to the Oireachtas to craft a coherent citizenship-by-descent scheme for these families.

Impact

Inclusion of Genetic Mothers: The judgment confirms that Irish genetic mothers abroad can pass citizenship by descent under section 7(1).
Unconstitutionality of the Lacuna: By recognizing a constitutional breach in Article 40.1, the court compels the Oireachtas to legislate a tailored, non-discriminatory citizenship scheme for donor-conceived children abroad.
Future Legislation: Lawmakers must now address the treatment of non-genetic, non-gestational parents and ensure that citizenship-by-descent rules keep pace with DAHR and surrogacy developments. Drafted but uncommenced measures (Health (AHR) Act 2024, further surrogacy reform) remain incomplete.
Private International Law: The decision underscores that foreign-law recognition of genetic parentage carries equal weight in citizenship applications, subject only to public policy.

Complex Concepts Simplified

Jus sanguinis: Citizenship by bloodline—Irish nationality conferred on children whose parent is an Irish citizen, whether born in Ireland or abroad.
Section 7(1) 1956 Act: “A person is an Irish citizen from birth if at the time of his or her birth either parent was an Irish citizen or would if alive have been an Irish citizen.”
Double-construction rule: Where a statute can bear two meanings, one constitutional and one not, the court favors the meaning that upholds constitutional rights—but cannot rewrite the law.
DAHR: Donor-assisted human reproduction covers IVF, sperm or egg donation, and embryo transfer. Irish DAHR births in-State are recognized under the Children and Family Relationships Act 2015.
Private international law: A child’s status under foreign law (e.g., genetic motherhood recognized abroad) is generally respected in Irish courts unless it conflicts with core public policy.

Conclusion

X. & Z. v Minister for Foreign Affairs ([2025] IEHC 214) marks a pivotal step in aligning Irish citizenship law with modern family realities. The High Court affirmed that:

An Irish genetic mother whose parentage is recognized under foreign law may pass citizenship by descent under section 7(1).
Extending that statutory provision to non-genetic, non-gestational parents would alter the scheme beyond permissible judicial interpretation.
The absence of any legislative route for donor-conceived children born abroad to an Irish citizen parent amounts to irrational discrimination in breach of Article 40.1. A declaratory remedy has been granted, urging the Oireachtas to enact a comprehensive, non-discriminatory citizenship-by-descent regime for these families.

By recognizing genetic motherhood abroad and spotlighting the constitutional lacuna, this judgment charts the path for future legislation to ensure all children of Irish citizens—regardless of how or where they are born—enjoy equal access to the citizenship they deserve.