X. v Minister for Foreign Affairs & Ors, Z. [Suing by his Mother and Next Friend Y.] v Minister for Foreign Affairs & Ors (Approved)

Factual and Procedural Background

These proceedings concern the entitlement of children of same-sex parents born abroad to Irish citizenship and passports where one parent is an Irish citizen. The cases involve two families: one with a child born in Spain and the other with two children born in Australia, all born following donor assisted human reproduction procedures ("DAHR"). The Minister for Foreign Affairs refused to issue Irish passports to these children based on an interpretation of Irish law that defines "parent" for citizenship by descent under s. 7 of the Irish Nationality and Citizenship Act, 1956 (as amended), as only including the birth (gestational) mother and biological father, excluding non-gestational or non-biological parents in same-sex couples.

Under Irish law, the Children and Family Relationships Act, 2015 (CFRA) provides recognition of non-genetic mothers as parents for children born in Ireland following DAHR, and prospective court orders for recognition where the child is born in Ireland but the DAHR procedure was carried out abroad. However, no provision currently exists for recognition of parentage from birth for children born abroad following DAHR carried out in accordance with the law of the child's domicile.

Judicial review proceedings were initiated by the two families challenging the Minister's refusal to recognize the applicants as parents for the purpose of citizenship by descent. Leave to proceed was granted in early 2022. The cases were adjourned pending the Supreme Court decision in A, B & C (A Minor) v. Minister for Foreign Affairs [2023], which addressed related issues concerning surrogacy and citizenship. The cases were subsequently heard by the High Court, with evidence including expert opinions on Australian and Spanish law, and submissions on constitutional and statutory interpretation.

Legal Issues Presented

1. Whether the Minister for Foreign Affairs erred in law and acted ultra vires by not recognizing the applicants as legal parents to their children born abroad through DAHR, thereby denying the children passports under s. 7 of the 1956 Act on the basis that "parent" excludes non-gestational or non-biological parents in same-sex couples.
2. Alternatively, whether the failure to recognize such parentage for the purposes of s. 7 of the 1956 Act is unconstitutional, infringing Articles 40.1, 40.3, 41, and 42A of the Constitution, and/or in breach of the European Convention on Human Rights (particularly Articles 8 and 14), given that the State recognizes two parents under the CFRA for children born in Ireland through DAHR.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the statutory language, legislative history, constitutional provisions, and relevant jurisprudence to interpret s. 7(1) of the 1956 Act, which confers Irish citizenship by descent where "either parent" is an Irish citizen at the time of birth. The Minister's narrow interpretation limited "parent" to the birth (gestational) mother and biological father, excluding non-gestational or non-biological parents, particularly affecting same-sex couples using DAHR abroad.

The Court acknowledged the binding Supreme Court decision in A, B & C (A Minor) which held that s. 7(1) does not include non-genetic parents who acquire parentage post-birth by court order, emphasizing the temporal requirement that parentage and citizenship must coincide at birth. However, the Court distinguished the present cases, especially the Spanish family (Y case), where the Irish citizen is the genetic mother, recognized as a parent under the law of domicile (Spain) from birth. The Court found that a broader interpretation of "parent" to include a genetic mother exercising parental rights is consistent with constitutional principles, statutory purpose, and equality rights.

Conversely, the Court found no basis to extend this interpretation to the non-genetic, non-gestational parent in the Australian family (X case), as such recognition depends on court orders post-birth, which Irish law does not currently recognize retrospectively for citizenship purposes. The Court emphasized the importance of separation of powers and that altering the legislative scheme fundamentally is a matter for the Oireachtas, not the judiciary.

The Court applied constitutional equality principles under Article 40.1, finding that the current legislative lacuna results in arbitrary and irrational discrimination against children born abroad through DAHR to same-sex couples, particularly non-genetic parents, with no rational basis for differential treatment compared to children born in Ireland or through traditional means. The Court recognized the State's sovereign prerogative in conferring citizenship but held that failure to legislate for recognition of these relationships results in a breach of constitutional equality rights.

Regarding personal and family rights under Articles 40.3, 41, and 42A, the Court found no current breach in respect of the X family due to lack of evidence of practical impact or intention to reside in Ireland, but acknowledged that failure to provide recognition may infringe these rights in other circumstances. The Court also considered the European Convention on Human Rights and found no basis to grant relief under the 2003 Act, noting the wide margin of appreciation afforded to States in complex family law matters and the absence of practical impact on family life where the families reside abroad.

Holding and Implications

The Court concluded that the Minister erred in construing s. 7(1) of the 1956 Act as excluding the genetic mother recognized as a parent under the law of domicile and granted declaratory relief to this effect.

Further, the Court found that the absence of a legislative pathway for conferring citizenship by descent on children of Irish citizens domiciled abroad recognized as parents under private international law results in unconstitutional unequal treatment. Declaratory relief was granted to acknowledge this failure.

The Court emphasized that it is for the Oireachtas, as sole law-maker, to address the legislative lacuna and ensure recognition of parental relationships arising from DAHR abroad, consistent with constitutional provisions protecting equality, family life, and the best interests of the child.

No new precedent was set beyond the declaratory findings, and the decision does not alter the existing legislative framework but highlights the need for legislative reform. The proceedings will be listed for further directions concerning orders and consequential matters.