X. v Minister for Foreign Affairs and Others, Z. [Suing by his Mother and Next Friend Y.] v Minister for Foreign Affairs and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 11 April 2025
• Neutral Citation: [2025] IEHC 214
• Court: High Court
• Docket Number: Record No. 2022 38 JR Record No. 2022 40 JR Record No. 2022 39 JR Record No. 2022 215 JR

Between

X.

Applicant

and

The Minister for Foreign Affairs the Attorney General Ireland

Respondents

Between

Z.

Suing by his Mother and Next Friend Y.

Applicant

and

The Minister for Foreign Affairs the Attorney General Ireland

Respondents

[2025] IEHC 214

Record No. 2022 38 JR

Record No. 2022 220 JR

Record No. 2022 40 JR

Record No. 2022 39 JR

Record No. 2022 215 JR

THE HIGH COURT

JUDICIAL REVIEW

Citizenship – Passports – Parentage – Applicants seeking passports for their children – Whether the first respondent erred by not recognising the applicants as the legal parents to their children

Facts: The first respondent, the Minister for Foreign Affairs (the Minister), refused to issue an Irish passport to children of same-sex parents born abroad where one parent was an Irish citizen. The Minister interpreted and applied Irish law as meaning that, for the purposes of s. 7(1) of the Irish Nationality and Citizenship Act 1956, the “parents” of a child born outside the State are broadly the child’s birth (or gestational) mother and the child’s biological father. The applications were refused because the children were born using donor assistance in circumstances where the Irish citizen party to the same-sex couple was neither the gestational mother nor the biological father of the child. On the Minister’s construction of s. 7(1), parentage at the time of birth is a necessary but not sufficient condition for the operation of s. 7(1). The substantive issues arising in the proceedings were: (i) whether the Minister erred in law, and in doing so acted ultra vires, by not recognising the applicants as the legal parents to their children and by denying the children passports under s. 7 of the 1956 Act on the basis that a “parent” for the purpose of the 1956 Act excludes them because they are not the gestational or adoptive parent; (ii) alternatively, in circumstances where the State already recognises parental rights of two same-sex parents under Part 2 and/or Part 3 of the Children and Family Relationships Act 2015, regardless of whether the same-sex partners are married, whether the failure to recognise the applicants as parents for the purpose of s. 7 of the 1956 Act is unconstitutional and/or in breach of the Convention.

Held by the High Court (Phelan J) that, drawing on the analysis of the Supreme Court in A, B & C (A Minor) v Minister for Foreign Affairs [2023] IESC 10 insofar as the interpretation of s. 7(1) of the 1956 Act was concerned and in addressing the constitutional arguments which arose, the Minister erred in construing s. 7(1) as excluding the genetic mother of a child recognised as a parent of that child in accordance with the law of their place of domicile. Phelan J granted declaratory relief to that effect. She was further satisfied that the absence of a legislative pathway providing for the acquisition of citizenship by the children of an Irish citizen domiciled or habitually resident abroad who may be recognised as a parent in accordance with the rules of private international law in a manner which results in the unequal treatment of the child and parent and family unit before the law without rational basis results in a failure on the part of the State to vindicate constitutional rights. She granted declaratory relief to that effect.

Phelan J held that it was for the Oireachtas to determine the form and content of any legislation adopted to cure the identified breach of constitutional rights which flowed from the lacuna in Irish law.

Relief granted.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 11th day of April, 2025.

INTRODUCTION

1 . 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. In the case of one of the two families in the cases before me, the child in question was born in Spain. In the other, the two children concerned were born in Australia. In each case, the children were born following recourse to donor assisted human reproduction procedures (hereinafter “DAHR”). In the case of all three children, the Minister has refused to issue an Irish passport.

2 . Entitlement to a passport under the legislative scheme turns on the correct interpretation of “ parent” for the purpose of an application under s. 7 of the Irish Nationality and Citizenship Act, 1956 (as amended in 2001) (hereinafter “the 1956 Act”) which provides for the conferral of citizenship by descent where a parent is an Irish citizen. The Minister for Foreign Affairs (hereinafter “the Minister”) interprets and applies Irish law as meaning that, for the purposes of s. 7(1) of the 1956 Act, the “ parents” of a child born outside the State, are broadly (i) the child's birth (or gestational) mother and (ii) the child's biological father. Separate provision is made for the case of a child adopted by an Irish citizen.

3 . The applications in question have been refused because the children were born to same-sex couples abroad using donor assistance in circumstances where the Irish citizen party to the same-sex couple is neither the gestational mother nor the biological father of the child. This is the Minister's decision even in the case of the Spanish born child where the Irish citizen party to the same-sex couple is also the biological or genetic mother.

4 . By way of relevant context, provision is made under Irish law, pursuant to the provisions of the Children and Family Relationships Act, 2015 (hereinafter “the CFRA”) (commenced in material part by S.I. 541/2019 from 4 ^th of May, 2020), for the recognition of non-genetic mothers as parents where the birth of the child occurs in the State following DAHR. Separately, parental recognition may be granted prospectively by court order in respect of procedures carried on outside the State, where the child is born in the State, in prescribed circumstances.

5 . No provision has yet been made by law for parental recognition in a manner which recognises parentage from birth in the case of children born outside the State following DAHR carried out in accordance with the law of the child's domicile and recognised under that law.

6 . On the Minister's construction of s. 7(1), parentage at the time of birth is a necessary but not sufficient condition for the operation of s. 7(1) of the 1956 Act. The person asserting parentage also must be either the biological (genetic) father, or the birth (gestational) mother, except in the case of adoptive parents. Parents of children to whom s. 5 of the CFRA applies, namely, children born within the State, would also meet the definition but as these children are born in the State, citizenship by descent under s. 7(1) of the 1956 Act does not apply.

7 . Where “ parent” is found to be properly interpreted as excluding the same-sex Irish citizen parent in these cases, then the constitutionality of s. 7(1) and its compatibility with the requirements of the European Convention on Human Rights (hereinafter “the Convention”) arises for determination.

8 . These proceedings raise issues very similar to those considered by the Supreme Court in A, B & C (A Minor) v. Minister for Foreign Affairs [2023] IESC 10, [2023] 1 ILRM 335, where the Supreme Court considered the position of the child born by surrogacy to a same-sex male couple, the husband of the genetic father being an Irish citizen. As no challenge had been brought to s. 7 of the 1956 Act, the decision A, B & C (A Minor) v. Minister for Foreign Affairs turned on the meaning of s. 7(1) of the 1956 Act. In this judgment, I draw heavily on the analysis of the Supreme Court (principal judgment of Murray J. and concurring judgment of Hogan J.) in A, B & C (A Minor) v. Minister for Foreign Affairs insofar as the interpretation of s. 7(1) of the 1956 Act is concerned and in addressing the constitutional arguments which arise on these proceedings.

BACKGROUND

Australian Family X

9 . Ms. X is an Irish citizen, born in Ireland on the 6 ^th of September, 1968. She lives in New South Wales, Australia, and entered a same-sex relationship on or about the 1 ^st of September, 2005, from which said same-sex relationship two sons were born via artificial insemination from a sperm donor following an embryo transfer in 2011 and 2014 respectively (a form of DAHR) with the assistance of Genea IVF Clinic in Sydney. The sperm donor in the case of both children was the Irish citizen's brother who complied with all clinic requirements with respect of sperm collection. The eggs were provided by Ms. X's Australian partner who was also the birth or gestational mother.

10 . Ms. X is not the biological mother of her sons but is recognised as their legal parent under Australian law. She is named as their “ parent” on both their birth certificates.

11 . On or about the 16 ^th of October, 2017, Ms. X and her partner, applied for Irish passports for both her sons. Ms. X claims her sons are entitled to Irish passports via descent by application of s. 7 of the 1956 Act.

12 . On or about the 17 ^th of October, 2017, Ms. X and her partner met with the Irish Consulate in Sydney, Australia, and submitted the supporting documentation to their sons' applications. Ms. X was questioned as to the nature of her relationship with her sons and she provided her sons' birth certificates and confirmed that she is the legal parent to both children.

13 . On or about the 7 ^th of November, 2017, Ms. X received a letter from the Department of Foreign Affairs notifying her that her sons' Irish passports would be denied on the basis that the Department does not recognise her as being a “ mother” or “ parent” to either of her sons, and as such, her sons could not claim citizenship or an Irish passport via descent under s. 7 of the 1956 Act.

14 . In the same letter, the Department of Foreign Affairs stated:

“… for the purposes of Irish law, and in particular in this case, for...