State secures Supreme Court appeal against citizenship ruling for children of same-sex couples

Irish Times

3 days ago

The State has secured a Supreme Court appeal against a High Court ruling that found failings in how Irish citizenship-by-descent laws treat children born to same-sex parents living abroad.
Two separate cases determined by the High Court earlier this year involved children born abroad to two sets of legal mothers following donor-assisted human reproduction (DAHR).
In the case of one Irish mother living in Australia, referred to as 'Ms X', her children, on whose birth certificates she is named, were refused passports because she was not their gestational mother, biological father or adoptive parent.
Therefore, the Minister for Foreign Affairs found she 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.
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The High Court declared that she, her children and her family were treated unequally because the Government failed to provide a way for the boys to achieve Irish citizenship.
In the other case, a passport was refused for a Spanish-born child, despite the Irish citizen, 'Ms Y', being the genetic mother but not the gestational mother, having donated her egg to her partner. The High Court found the Minister erred in interpreting section 7 as excluding Ms Y as the child's parent.
It also held that Irish law does not afford a properly tailored means of vindicating the rights of a child born abroad to a non-genetic, non-gestational Irish citizen mother.
An application made by the Minister for Foreign Affairs, the Attorney General and Ireland seeking to appeal the decisions argued the High Court failed to properly determine the nature and extent of the State's equality obligations.
The State parties said there is a need for certainty about who qualifies as a parent or mother. The answer to this question will affect the development of the law in an area of 'particular sensitivity', they said.
'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.'
The State parties said the issue is a 'matter of general public importance which will affect a considerable number of people in regard to an important aspect of their lives'.
They contended an appeal brings 'no prejudice' to the families and would benefit them 'as it will lead more quickly to a final and conclusive determination of the issues'.
In the case of 'Ms Y', in particular, the State said the High Court's interpretation of the section 7 definition of a parent is 'novel and without precedent and is contrary to the vast majority, if not all, prior precedent'.
'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,' it said.
Neither family opposed the State's appeal applications. They both recognised the importance of clarifying the law, saying it is in the public interest to gain certainty as to who qualifies as a 'parent' under citizenship laws.
The families have been permitted to cross-appeal claiming, among other points, the High Court was wrong to find that a non-genetic, non-gestational legal parent does not meet the section 7 definition of a parent.
Speaking to The Irish Times earlier this year,
Ms X said she was 'extremely disappointed' her homeland would not recognise her as a parent to her two sons.
'To be told you are not a parent of your own child is a very hard thing to have to listen to,' she said.