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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> X. v Minister for Foreign Affairs & Ors, Z. [Suing by his Mother and Next Friend Y.] v Minister for Foreign Affairs & Ors (Approved) [2025] IEHC 214 (11 April 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC214.html Cite as: [2025] IEHC 214 |
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JUDICIAL REVIEW
[2025] IEHC 214
Record No. 2022 220 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
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 4th 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 6th of September, 1968. She lives in New South Wales, Australia, and entered a same-sex relationship on or about the 1st 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 16th 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 17th 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 7th 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 the purposes of the 1956 Act, a parent is understood to mean either the "mother" or "father" of the child. For the purposes of Irish law, the mother of the child is the person who gives birth to the child or a female adopter of the child."
15. By way of letter dated the 15th of December, 2017, Ms. X wrote to the Minister of Foreign Affairs to appeal the Department's decision on the basis that:
a. She was the legal parent of her sons under Australian law,
b. She had proof of parentage and had submitted same to the Department (birth certificates that stated her as the parent to both sons).
c. the refusal left Ms. X and her two sons in 'legal limbo' without the possibility of Ms. X's sons gaining Irish citizenship or an Irish passport, and or,
d. the refusal amounted to a decision by the State to refuse to recognise her as a parent under the Hague Convention for any child protection/abduction issues.
16. In addition, Ms. X informed the Minister that she was considering moving back to Ireland with her children and the refusal of the Department to issue an Irish Passport to her two sons was causing considerable difficulty to her family. Indeed, in moving her subsequent application for leave to proceed by way of judicial review she averred on affidavit that she intended to bring the children to visit Ireland and settle in Ireland. In a later affidavit sworn by a solicitor in the firm with carriage of proceedings on behalf of the X family, it was confirmed that the averment made in relation to an intention to return to live in Ireland was inaccurate and represented a "misinterpretation of the Applicant's instructions and, in turn, an error in drafting" (paragraph 3, Affidavit of Niall McMonagle, sworn on the 29th of April, 2022). It was explained that this error went unnoticed during the swearing of the grounding affidavit which took place under significant time pressure and after Ms. X had travelled from Australia especially.
17. Between February, 2018, to July, 2020, Ms. X attempted to engage with the Department of Foreign Affairs but with little success. Ms. X separated from her Australian partner in October, 2019, but the couple continued living under the same roof until their youngest son finished his first term at school in April, 2020. The couple obtained parenting and property orders from the Family Court of Australia on the 30th of March, 2020. These orders state that Ms. X is the parent of both children pursuant to the operation of s. 60H Family Law Act (Cth) 1975. She has equal shared parental responsibility for both children and the children live with her 50% of the time. She pays child support for both children.
18. On or about the 29th of July, 2020, Ms. X sent a letter to the Minister seeking an update and enclosed a copy of the Family Law Court Order in support of her sons' applications. As noted above, the order confirmed Ms. X as parent to both children.
19. On or about the 23rd of December, 2020, Ms. X received a letter for each of her sons from the Passport Office rejecting her application for a passport for both her sons. The rejection was again based on the non-recognition of Ms. X as a "parent" or "mother" under Irish law and, as such, descent could not be claimed under s. 7 of the 1956 Act.
20. By way of email dated the 20th of January, 2021, Ms. X appealed the Passport Office's decision to refuse her sons an Irish passport to the Department of Foreign Affairs but by way of letter dated the 5th of February, 2021, and email dated the 12th of February, 2021, the Department of Foreign Affairs rejected the appeal on the basis that her sons are not entitled to Irish citizenship "having regard to the legal definition of parent in this context under Irish law".
21. On or about the 26th of May, 2021, Ms. X received an email from the Consulate General of Ireland stating that her application for a passport for each of her sons had been cancelled. By way of email dated the 8th of July, 2021, Ms. X attempted to appeal the Consulate General's decision to cancel the passport application and advised that she was considering moving to Ireland with her sons and this refusal left her and her sons in legal uncertainty.
22. By way of emails dated the 14th and 16th of January, 2021, the Consulate General advised that Ms. X's sons could apply for residency instead of citizenship. By way of letter dated the 15th of August, 2021, Ms. X wrote directly to the Minister of Foreign Affairs requesting a passport for her sons and requesting that she be recognised as "parent" to her sons. She enclosed again a copy of both her sons Australian birth certificates and the Family Law Court Order that identifies her as parent to both her sons.
23. The Minister acknowledged Ms. X's letter on the 15th of August, 2021, and by way of letter dated the 15th of November, 2021, (that was received on the 6th of December, 2021) the Minister rejected Ms. X's request for a passport for her sons and rejected her status as "parent" to her sons. The Minister stated that he had no discretion to grant same by application of s. 12(1)(a) of the Passports Act, 2008 (hereinafter "the 2008 Act").
24. In an Affidavit sworn on behalf of the X family by a solicitor acting on their instructions in these proceedings, it was later clarified that the instructions provided by Ms. X were that she wanted her children to attain Irish passports/citizenship so that they can obtain the full benefits of same, including the unconditional option to live and work in Ireland should they wish when they reach the age of majority and not that she had a current intention of moving to live in Ireland with her children, as had previously been suggested.
Spanish Family Y
25. Ms. Y is an Irish citizen born on the 9th of February, 1981, and holds an Irish passport that reflects same. She moved to Spain circa 2011 and entered a same-sex relationship with a British citizen living in Spain. They married in Spain on the 2nd of June, 2016. The couple live in Spain.
26. There are two sons of the marriage born through a process known as "Shared Motherhood IVF", a form of DAHR. Their first son was born following artificial insemination of Ms. Y wife's embryo ("the genetic mother") by an anonymous sperm donor and implantation of the fertilised embryo into Ms. Y, the "gestational mother". Ms. Y carried the fertilised embryo to term and physically gave birth to her first son. Both mothers are registered on their son's Spanish birth certificate as "Mother A" and "Mother B."
27. In or about July, 2016, Ms. Y and her wife applied for an Irish passport for their older son via the Irish Embassy in Spain. Ms. Y was advised by the Department of Foreign Affairs that for the purposes of Irish law, she was the sole guardian of the first son and only her consent was required. She was then asked to a complete a "Sole Guardian Affidavit," to aver she was the sole guardian of her son even though she and her wife were both named parents on his birth certificate and they both shared guardianship and custody. Ms. Y refused to sign this "Sole Guardian Affidavit" considering that it would be false to do so. As a result, the Department of Foreign Affairs asked Ms. Y and her wife to complete an affidavit averring parental rights to their first son.
28. Upon completion of the Affidavit of Parental Rights, the Department of Foreign Affairs granted their first son an Irish passport which issued on the 10th of December, 2019. The Irish passport for their older son was granted under s. 7 of the 1956 Act based on citizenship by descent.
29. The couple's second son was born in Spain in January, 2020, by a similar process only in reverse. Following artificial insemination of Ms. Y's embryo by an anonymous sperm donor, the fertilised embryo was implanted into Ms. Y's wife. Ms. Y's wife then carried their second son to term and physically gave birth to him. In consequence, Ms. Y was the "genetic mother" and her wife was the "gestational mother". Again, both mothers are registered on their son's Spanish birth certificate, as "Mother A" and "Mother B".
30. Following his birth in January, 2020, Ms. Y and her wife applied for an Irish passport for their second son by application submitted in May, 2020. Although they were not requested to do so, they also completed an "Affidavit of Parental Rights" as the Department had previously requested same for their other son. The application was again submitted via the Irish Embassy in Spain and was supported by Ms. Y's birth certificate, her birth certificate, her marriage certificate, and a letter from Institut Marquès regarding shared motherhood IVF. Due to Covid 19 restrictions, there was considerable delay in the progression of the passport application.
31. On or about the 18th of November, 2021, in furtherance of the passport application, an Affidavit of Laws was submitted averring both women as having parental rights in respect of their son. A similar Affidavit had been submitted with the previous successful application.
32. On the 6th of February, 2022, due to the delay in processing the application and the lack of engagement by the Department of Foreign Affairs, Ms. Y sent an email to the Minister for Foreign Affairs seeking to speed up the process. At the same time, she sent a copy of said email to the Irish Consulate in the Irish Embassy in Madrid quoting a case from the European Court of Justice (hereinafter "ECJ") in support of the application, namely, V.M.A. v Stolichna obshtina, rayon 'Pancharevo' Case No. C - 490/20 (14th of December, 2021).
33. By way of letter dated the 23rd of February, 2022, the Department of Foreign Affairs refused to grant an Irish passport to the couple's second son on two grounds:
a. Ms. Y was not defined as a "mother" or "parent" for the purposes of s. 7 of the 1956 Act (as such, the Applicant could not claim citizenship by descent),
And/or,
b. the Department was then appealing a decision in the case of ABC (a Minor suing by his next friend A) v Minister for Foreign Affairs [2021] IEHC 758 and would not decide on the application case until the final determination of the ABC appeal.
34. From the terms of the refusal letter, it was apparent that the Department interpreted s. 7 of the 1956 Act as requiring a child to have either an Irish "father" or "mother" to qualify for citizenship. The Department did not recognise Ms. Y as a "mother" as she did not give birth to her second son nor did she adopt him even though she was his legal parent, was named on this birth certificate and was his "genetic mother". The Department went on to differentiate Ms. Y's wife as being the "birth mother" because of lineage deriving solely on the act of physical birth as opposed to genetic lineage for the purposes of s. 7 of the 1956 Act. The Department further discounted the application of the ECJ case of V.M.A. v. Stolichna obshtina, rayon 'Pancharevo' Case No. C - 49020 (14th of December, 2021) and identified a then recent High Court case then under appeal by the Minister for Foreign Affairs: A, B & C (a Minor suing by his next friend A) v. Minister for Foreign Affairs [2021] IEHC 758, as a basis to suspend the application for an Irish passport until the final determination of the ABC case.
35. Although the couple's son holds a British passport, via his gestational mother, he cannot claim EU citizenship following Brexit because of the Minister's failure to issue him an Irish passport.
PROCEEDINGS
36. Leave to proceed by way of judicial review in the X case (proceedings in the name of Ms. X and separate proceedings in the names of each of her sons) was granted by Meenan J. on the 7th of February, 2022, on foot of papers lodged on the 20th of January, 2022.
37. Leave to proceed by way of judicial review in the Y case (mother and son in separate proceedings) was granted by Meenan granted J. on the 21st of March, 2022. Meenan J. directed that these cases should be anonymised and travel together with the X cases.
38. On consent, all proceedings were adjourned several times due to the then pending Supreme Court decision of A, B & C (A Minor) v. Minister for Foreign Affairs and Trade delivered on the 9th of May, 2023. An error in the grounding affidavit in the X case about her intentions to move to Ireland with her children was correct by an affidavit sworn by a solicitor acting on Ms. X's instructions. This error was communicated at a relatively early stage and before the filing of Opposition papers.
39. Following delivery of judgment in A, B & C (A Minor), an affidavit of legal opinion was sworn in the Y case on the 18th of October, 2023. A legal opinion was also obtained in the X case and put before the Court on affidavit sworn on the 18th of August, 2023.
40. Applications to amend the Statement of Grounds followed in both cases. On the 23rd of January, 2024, on consent, Hyland J. granted liberty to file and serve an amended Statement of Grounds. This was followed by delivery of an amended Statement of Opposition in each case in March, 2024.
41. In the X case, a preliminary time issue is pleaded arising from the failure to bring proceedings within three months of the refusal of a passport. No similar time issue arises in the Y case.
42. The cases proceeded to hearing before me in two parts as it emerged during the opening of the case on behalf of the Applicants in all linked proceedings that the Irish Human Rights and Equality Commission (hereinafter "IHREC") had not been put on notice of the proceedings in accordance with the requirements of s. 6 of the European Convention on Human Rights Act, 2003 (hereinafter "the 2003 Act") consequent upon relief sought under s. 5 of the 2003 Act in all cases. It became necessary to adjourn the proceedings, part-heard, at the close of the Applicants' case, to afford due opportunity to the IHREC to determine whether they wished to seek leave to intervene in the proceedings. Ultimately, the case resumed without application on behalf of IHREC being made.
43. It is disappointing that more than twenty years after the enactment of the 2003 Act, to observe that IHREC is not notified as a matter of course in cases in which a declaration of compatibility with the European Convention on Human Rights is sought. In this case, the failure to comply with mandatory statutory requirements as to notification of IHREC resulted in an interruption of the hearing (where at least one of the parties had travelled a long distance to be present) and delay in concluding the case which could have been avoided.
EVIDENCE OF FOREIGN LAW
44. Evidence of Australian law is available in the form of an opinion from Mr. Robert George Lethbridge, Senior Counsel and Specialist Practitioner in Family and Property Relationships Law.
45. In his Opinion, Senior Counsel refers to the orders made confirming under Australian law that Ms. X was entitled on birth of each child to bear and have shared equal responsibility along with the birth mother, for all day-to-day issues and all major long-term issues affecting the children. Her parental status is determined pursuant to s.60H of the Family Law Act, 1975 (hereinafter "the 1975 Act") of the Commonwealth of Australia.
46. To qualify as a parent pursuant to the provisions of s. 60H(1), it was necessary for Ms. X to establish that she was a de facto partner of the birth mother at the time of conception and birth, that she and the birth mother both consent to the carrying out of the conception procedure and that the provider of the genetic material used in the procedure consented to its use in an artificial conception procedure.
47. Under s. 69R of the 1975 Act, entry of a person's name on the register of births as a parent of a child gives rise to a presumption of parentage (rebuttable in accordance with s. 69U). Separately, a conclusive presumption of parentage arises from findings of the courts pursuant to s. 69S of the 1975 Act. It is Senior Counsel's opinion that the order made pursuant to s. 69S upon the separation of the X family declaring Ms. X's parentage was unnecessary where she is already recognised as parent on a proper interpretation of s. 60H(1) of the 1975 Act.
48. Evidence of Spanish law is available in the form of an opinion from Mr. Edward Alexander Gordon Grant, a practising Spanish lawyer who specialises in Spanish family law and civil law. He confirms that in Spanish law, parentage is dealt with as filiation regulated by Articles 108 to 111 of the Spanish Civil Code and that the establishment and evidence of filiation are regulated by the Civil Code Articles 112-126. IVF treatment is an approved method of assisted reproduction in Spain and is regulated under Law 14/2006 of 26th of May, on Techniques of Human Assisted Reproduction.
49. In Spanish law, the contract for the sperm is between the donor and the authorised centre, the donation is anonymous, and the centre must guarantee the confidentiality of the donor. Children who are born have a right to obtain general information about the donors, but this does not include a right to the donor's identity. Only in very restricted and exceptional circumstances when there is a risk to the life or health of the child or in criminal proceedings can the identity of donors be revealed, and revealing the identity in those circumstances does not imply legal filiation. The sperm donor has no legal entitlement to be recognised as father or parent, and he was never recognised as such in Spanish law.
50. The Spanish lawyer confirms his opinion that under Spanish law, both Ms. Y and her spouse are the legal mothers of both children and they both have the full rights and obligations associated with filiation. Parentage is recognised from the moment of birth. The Spanish lawyer further confirms that there are no known grounds on which Ms. Y's parenthood is defeasible. Accordingly, under Spanish law, Ms. Y is recognised as parent of her two children from birth. She is named as one of two parents on both their birth certificates. The sperm donor is not named as parent on the birth certificates and has no rights parental or otherwise in respect of the child under Spanish law.
51. The substantive issues arising in these proceedings may be concisely netted down as being:
I. Whether the Minister for Foreign Affairs erred in law, and in doing so acted ultra vires, by not recognising Ms. X and Ms. Y as the legal parent 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 CFRA (i.e. two mothers, two fathers or two parents), regardless of whether the same-sex partners are married, whether the failure to recognise Ms. X and Ms. Y as parents for the purpose of s. 7 of the 1956 Act is unconstitutional (as contrary to Articles 40.1, 40.3, 41 and 42A) and/or in breach of the Convention (as contrary to Articles 8 and/or 14).
LEGAL FRAMEWORK
52. The issues arising require to be considered in the context of the applicable legal framework which comprises relevant provisions of the Constitution and statute. The background to s. 7(1) of the 1956 Act was comprehensively considered in the Supreme Court judgment of Murray J. in A, B & C (A Minor) v. Minister for Foreign Affairs. It is clear from the background addressed in the judgment, however, that this is a complex area of law with "parent" and "child" bearing distinct meanings in different statutory contexts.
53. While anxious to avoid unnecessarily repeating the comprehensive assessment of the legal framework set out in the judgment of Murray J. in A, B & C (A Minor) v. Minister for Foreign Affairs, it is nonetheless appropriate to provide a summary of the legal context (addressed in more detail in the judgment of Murray J.) to properly locate the related but somewhat different issues arising for consideration in these proceedings in proper context, the better to give true effect to the intention of the Legislature in providing for citizenship by descent in s. 7(1) of the 1956 Act in the interpretation of that provision.
54. Since its first citizenship legislation, the law of the State has acknowledged a version of jus sanguinis - the principle that citizenship may be determined or acquired by the nationality of one or both parents. Article 3 of the Irish Free State Constitution of 1922 provided that every person domiciled in the area of the jurisdiction of the Irish Free State at the time of the coming into operation of the Constitution, who was born in Ireland or either of whose parents was born in Ireland or who had been ordinarily resident in the area of the jurisdiction of the Irish Free State for not less than seven years, was a citizen of that State. In this way, the Constitution of the Irish Free State envisaged the conferral of citizenship by both jus sanguinis (through descent) and jus soli (through birth in Ireland).
55. The mandate with which Article 3 concluded - "the conditions governing the future acquisition and termination of citizenship in the Irish Free State ... shall be determined by law" - was eventually implemented by the Irish Nationality and Citizenship Act, 1935 (hereinafter "the 1935 Act"). Generally, the effect of the 1935 Act was to add to the category of persons upon whom citizenship was conferred those thereafter born whose father was a citizen of the Irish Free State. The 1935 Act provided at s. 2(1)(a) and (b) that persons who were born in the State were "natural-born citizens", as were (subject in some cases to registration requirements) certain persons whose fathers were citizens. Section 2(1)(e) and (f) accordingly extended Irish citizenship to the following:
"(e) every person who was born outside Saorstát Éireann on or after the 6th day of December, 1922, and before the date of the passing of this Act and whose father was, on the day of such person's birth, a citizen of Saorstát Éireann, and
(f) subject to the subsequent provisions of this section, every person who is born outside Saorstát Éireann on or after the date of the passing of this Act."
56. The same language then appeared in s. 2(2)(a) and (b) in addressing the position of persons born outside the State on or after the date of passing of the Act. Section 2(4) of the 1935 Act made further provision enabling persons who were not citizens by virtue of Article 3 of the Irish Free State Constitution, but who had been born in Ireland or "of parents of whom at least one was born in Ireland" to be citizens where they were or became residents of the State, or in certain circumstances where they registered as such.
57. Article 9.1.1 of the Constitution of Ireland, as enacted in 1937, provided that any person who was a citizen of Saorstát Éireann immediately before the coming into operation of the Constitution would become and be a citizen of Ireland but did not mirror the previous provisions of Article 3 of the Free State Constitution in providing for a constitutional right to citizenship for those either born in Ireland or born to Irish citizen parents. Article 9.1.2 was to the effect that the future acquisition and loss of Irish nationality and citizenship should be determined in accordance with law. That law subsequently took the form of the 1956 Act.
58. Article 9.1.3 of the Constitution went on to prohibit sex discrimination in relation to the conferral of an entitlement to citizenship as follows:
"No person may be excluded from Irish nationality and citizenship by reason of the sex of such person"
This was in a historical context whereby prior to 1922 citizenship was generally determined by the paternal line and the extent (if at all) to which females could acquire citizenship was unclear (see Hogan (writing extra-judicially), The Origins of the Irish Constitution 1928-1941, p. 521). The inclusion of this provision in the 1937 Constitution in addition to the more general equality clause at Article 40.1 is understood by reference to contemporaneous material as having been intended to reassure those concerned by the removal of an express provision prohibiting gender discrimination in relation to the conferral of citizenship and to eliminate any possibility whatever of gender discrimination so far as the entitlement of Irish females to citizenship was concerned.
59. Upon the enactment of the first legislation enabling adoption - the Adoption Act, 1952 - provision was made for citizenship by descent of adopted children (s. 25 of the 1952 Act).
60. Next, the 1935 Act was repealed upon the enactment of the 1956 Act. Section 2 of that Act as enacted provided "Ireland" meant the national territory as defined in Article 2 of the Constitution as it then was (the 32 counties of the island of Ireland, its islands and territorial seas). Section 6(1), as originally enacted, provided that every person born in Ireland was a citizen from birth.
61. Section 6(2) of the 1956 Act (as originally enacted) provided for citizenship by descent as follows:
'Every person is an Irish citizen if his father or mother was an Irish citizen at the time of that person's birth or becomes an Irish citizen under subsection (1) or would be an Irish citizen under that subsection if alive at the passing of this Act'.
62. Provision made for citizenship by descent of adopted children (s. 25 of the 1952 Act) was repealed and replaced by s. 11(1) of the 1956 Act as follows:
"Upon an adoption order being made, under the Adoption Act, 1952, in a case in which the adopter or, where the adoption is by a married couple, either spouse is an Irish citizen, the adopted child, if not already an Irish citizen, shall be an Irish citizen."
63. The effect of the section was to broadly align the root of citizenship by descent for adopted children with children born of an Irish citizen parent and to vest citizenship in the child by reference to the citizenship of either spouse in the case of a joint adoption. However, (a) citizenship vested only from the point of the making of the order, and (b) the rule operated only where an adoption was effected by an Irish adoption order.
64. The Status of Children Act, 1987 proceeded on the basis of the general assumption that "parentage" was "as traditionally understood" (per Murray J. (as he then was) in M.R. and Ors. v. An tArd Chláraitheoir ('M.R.') [2014] IESC 60, [2014] 3 IR 533 at para. 175 and see the provision for testing in s. 38). Section 3(1) provided that in deducing any relationship for the purposes of any Act passed after the commencement of the section, the relationship between every person and his father and mother shall, unless the contrary intention appeared, be determined irrespective of whether his father and mother were or had been married to each other, and that all other relationships would be determined accordingly. Then, s. 3(2) stated:
'(2) (a) An adopted person shall, for the purposes of subsection (1) of this section, be deemed from the date of the adoption to be the child of the adopter or adopters and not the child of any other person or persons.'
65. Section 5 of the Status of Children Act, 1987 also amended the Act of 1956, providing that references in the latter to "father", "mother" or "parent" includes, and shall be deemed to have always included:
"the father, mother or parent, as the case may require, who was not married to the child's other parent at the time of the child's birth or at any time during the period of ten months preceding the birth."
66. The first statutory provision expressly enabling recognition of a foreign adoption appeared in the Adoption Act, 1991 (although prior to this, certain foreign adoptions could be recognised in this jurisdiction under common law principles). Section 11 of the 1956 Act was indirectly applied to such foreign adoptions. However, before a foreign adoption order could be recognised under the 1991 Act, it had to comply with certain requirements specified in the Act the effect of which was, in broad terms, to reflect essential features of an adoption under Irish law (see B v. An Bord Uchtála [1997] 1 ILRM 15 at pp. 26-27 per Murphy J.).
67. From its enactment in 1937 until 1998, the 1937 Constitution did not provide directly for the conferral of rights of citizenship on birth (post its enactment whilst continuing to recognise already acquired rights under the 1922 Free State Constitution) but instead directed that acquisition and loss be determined by law.
68. A right to citizenship deriving directly from the Constitution re-appeared on foot of the 19th Amendment to the Constitution in 1998 following entry by the State into the Belfast Agreement 1998. The 19th Amendment to the Constitution re-introduced a concept of jus soli – the principle that citizenship may be passed by place of birth - through the insertion of a new Article 2 into the Constitution which stated:
"It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage."
69. The Irish Nationality and Citizenship Act, 2001 (hereinafter "the 2001 Act") was introduced to give legislative effect to changes made to Articles 2 and 3 of the Constitution by the 19th Amendment of the Constitution Act, 1998. This resulted in amendments to s. 6 of the 1956 Act, the broad effect of which was to similarly provide that birth on the island of Ireland gave rise to an 'entitlement' to citizenship, as opposed to conferring citizenship. The provisions governing citizenship by descent were, in consequence, re-located in s. 7 of that statute, where they remain.
70. Through the amendments given effect to by the 2001 Act, the new s.7(1) effected minor changes to its predecessor provision (s. 6(2)) principally by re-ordering parts of the subsection, by changing "father or mother" to "either parent" and by removing the previous provision insofar as it referred to the father or mother acquiring citizenship under s. 6(1). Section 7 of the 1956 Act , now provides (where relevant) as follows:
"(1) 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.
(2) The fact that the parent from whom a person derives citizenship had not at the time of the person's birth done an act referred to in section 6(2)(a) shall not of itself exclude a person from the operation of subsection (1).
Subsection (1) shall not confer Irish citizenship on a person born outside the island of Ireland if the parent through whom he or she derives citizenship was also born outside the island of Ireland unless -
(a) that person's birth is registered under section 27, or
(b) the parent through whom that person derives citizenship was at the time of that person's birth abroad in the public service;
Provided that the Irish citizenship of a person who, after 1 July, 1986, is registered under section 27 shall commence only as on and from the date of such registration."
71. Section 27(2) of the 1956 Act provides that the birth outside the island of Ireland of a person deriving citizenship through a father or mother so born may be registered in any foreign births entry book or in the foreign births register, the custody of which is provided for in ss. 27(1) and (1A).
72. Following a 2004 referendum, the 27th Amendment of the Constitution of Ireland was enacted that made the entitlement to birthright citizenship for people without Irish parents again dependent on legislation rather than the Constitution. In this way, a right to citizenship by birth in reliance on a principle of jus soli alone only existed between 2001 and 2004. That entitlement was then revoked by the Irish Nationality and Citizenship Act, 2004. The 27th Amendment of the Constitution Act, 2004 effected significant changes to Article 9 of the Constitution, including the insertion of new provisions, namely, Article 9.2.1 and 9.2.2, as follows:
"1. Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.
2. This section shall not apply to persons born before the date of the enactment of this section."
73. The new Article 9.2.1 is concerned with the conditions attaching to citizenship by birth and it applies only to births occurring after it comes into operation. It provides for a right to citizenship rooted in the Constitution based on a hybrid jus soli-jus sanguinis mix.
74. Post this constitutional amendment in 2004 and legislative changes thereby permitted, persons born in the Republic of Ireland before the 1st of January, 2005, were automatically citizens by birth regardless of the nationalities of their parents. Individuals born in the country since that date receive Irish citizenship at birth pursuant to ss. 6, 6A and 6B of the 1956 Act (inserted by s. 4 of the Irish Nationality and Citizenship Act, 2004) if at least one of their parents is an Irish citizen or entitled to be one, a British citizen, a resident with no time limit of stay in either the Republic or Northern Ireland, or a resident who has been domiciled on the island of Ireland for at least three of the preceding four years. Persons born in Northern Ireland are usually entitled to – but not automatically granted – Irish citizenship, largely under the same terms.
75. Foreign nationals may become Irish citizens by naturalisation after meeting a minimum residence requirement, usually five years (see ss. 15, 15A and 16 of the 1956 Act). The Irish Nationality and Citizenship Act 2004 made no change to the provisions of s. 7(1) of the 1956 Act.
76. Accordingly, s. 7(1) of the 1956 Act, where the focus is on citizenship by descent, has practical application uniquely to the conferral of citizenship on a child born abroad to an Irish citizen parent. Were the child born in Ireland, entitlement flows from the terms of s. 6 of the amended 1956 Act.
77. Subsequently, s. 175(d) of the Adoption Act 2010 amended s. 11 of the 1956 Act by substituting in the latter the reference to "the Adoption Act 1952" with the phrase "an adoption order within the meaning of section 3 (1) of the Adoption Act 2010 or an intercountry adoption effected outside the State being recognised within the meaning of that Act." The effect is that the provision now reads as follows:
"Upon an adoption order being made, under an adoption order within the meaning of section 3 (1) of the Adoption Act 2010 or an intercountry adoption effected outside the State being recognised within the meaning of that Act, in a case in which the adopter or, where the adoption is by a married couple, either spouse is an Irish citizen, the adopted child, if not already an Irish citizen, shall be an Irish citizen."
78. Also relevant in setting out the statutory framework underpinning the decision making under scrutiny in these proceedings, s. 7 of the Passports Act 2008 provides:
"(1) Before issuing a passport to a person, the Minister shall be satisfied
(a) that the person is an Irish citizen, and
(b) as to the identity of the person."
79. Section 12(1)(a) of the 2008 Act requires the Minister to refuse to issue a passport to a person if the Minister is not satisfied that the person is an Irish citizen.
80. Major changes were introduced by the CFRA. The CFRA makes provision for DAHR which procedure it defines (s. 4) as being:
"any procedure performed in the State with the objective of it resulting in the implantation of an embryo in the womb of the woman on whose request the procedure is performed, where—
(a) one of the gametes from which the embryo has been or will be formed has been provided by a donor,
(b) each gamete from which the embryo has been or will be formed has been provided by a donor, or
(c) the embryo has been provided by a donor"
81. The CFRA provides a detailed scheme of regulation of DAHR, including provisions (s. 19) which render the consent of a donor invalid if given in exchange for financial compensation beyond expenses of certain kinds. Central to the Act is the "donor conceived child." The definition has two aspects - (a) a child born in the State as a result of a DAHR procedure after May, 2020; or (b) a child born in respect of whom a person has been declared under sections 21 or 22 as his or her parent (such child, by virtue of s. 20 of the CFRA, is also born in the State).
82. In terms of the concept of "parent" for the purpose of the CFRA, s. 5(1) of the Act provides that the parents of a child who is born as a result of DAHR are the mother, defined as "the woman who gives birth to the child" and the spouse, civil partner or cohabitant as the case may be of the mother, provided that the mother and these persons have consented to being the parents of the child in accordance with s. 5(8) of the Act and have complied with certain statutory registration requirements. Where there is no other party to the DAHR procedure, the mother alone is the parent.
83. Sections 5(3) and 5(4) then state:
"(3) Where a person is, under subsection (1) or (2), the parent of a child, he or she shall have all parental rights and duties in respect of the child.
(4) In deducing any relationship for the purposes of any enactment, the relationship between every donor-conceived child and his or her parent or parents shall be determined in accordance with this section and all other relationships shall be determined accordingly."
84. The section further provides that the donor of a gamete or embryo that is used in a DAHR procedure is not by reason of donation alone the parent of a child born as a result of that procedure and has no parental rights or duties in respect of the child. Section 5(7) states that a reference in any enactment to a mother or parent of a child shall be construed as not including a woman who is the donor of a gamete or embryo that was used in a DAHR procedure that resulted in the birth of the child and a father or parent shall be construed as not including a man who is the donor of a gamete or embryo that was used in such a procedure.
85. Further provision is made at ss. 20-23 of the CFRA to enable prospective recognition of parentage in certain limited circumstances. These, essentially, arise where a child is born in the State as a result of a DAHR procedure that was performed in the State or outside the State by persons authorised by the local law so to do, before the date on which s. 20 came into operation. The "intending parent" must have been such at the time when the DAHR procedure was performed. In those circumstances, a non-genetic intending parent and the child's mother can obtain a declaration from the District Court that the intending parent is a parent of a child conceived via a DAHR procedure performed in a clinic in Ireland or elsewhere prior to the commencement of CFRA. Similar declarations can be made by the Circuit Court on the application, inter alia, of the child.
86. The effect of these provisions is that in the limited circumstances in which they operate, the "intending parent" may become a "parent" after the birth of the child without having any genetic link with the child. Section 23 provides that where a person is declared to be a parent of a child, "from the date on which the declaration is made" that person "shall be deemed to be the parent, under section 5(1)(b), of the child."
87. The 1956 Act is not specifically referenced in the CFRA. Key to the issues arising in in relation to the proper application of s.7(1) of the 1956 Act and to the constitutional rights engaged by the facts here presenting, is that s. 5 provides a process for recognising parentage from birth in respect of a DAHR procedure carried out in the State. While provision is made for recognition of parentage (including non-genetic parentage) on foot of procedures carried on outside the State in certain circumstances, recognition is not retrospective and parentage is not declared from date of birth. No provision is currently made in Irish law for the recognition of parentage from birth in respect of children born outside the State with DAHR.
88. A further constitutional amendment relevant to the issues presenting in these cases occurred in 2015 when a new Article 41.4 was inserted into the Constitution following the Marriage Equality Referendum by the 34th Amendment of the Constitution. Article 41.4 provides that:
"Marriage may be contracted in accordance with law by two persons without distinction as to their sex."
89. Further, in terms of the statutory definition of "parent" in domestic legislation in circumstances where special provision is made by law for citizenship by descent, it is to be noted that s. 2(2) of the Adoption (Amendment) Act, 2017 repeals s. 102 of the CFRA, and s. 3(b) amends the definition of "parent" under the Adoption Act, 2010 to include:
"the mother or father of the child, or a woman (other than the mother) who is, under section 5 of the Children and Family Relationships Act 2015, a parent of the child where that child is a donor-conceived child."
90. In this way, Irish legislation has been updated to reflect developments in society and through science in an endeavour to keep pace with the lived reality of many Irish families. The modern concept of family and parenthood is very different to that prevailing in the 1930s when the Constitution was voted on and the 1950s when the primary legislation governing the conferral and loss of citizenship was enacted.
91. In a broader context, it bears note that since the decision in A, B & C, (A Minor), the Health (Assisted Human Reproduction) Act, 2024 was introduced to provide for the recognition of parentage in the case of domestic and international surrogacy cases, subject to the conditions prescribed in that Act. Section 226 of the 2024 Act inserts a new s. 11(A) into the 1956 Act as follows:
"(1) Subject to subsection (2), for the purposes of this Act, 'parent' shall include a person who is, under section 5 of the Act of 2015, a parent of a child born in the State.
(2) Where a person who is an Irish citizen is declared under section 21 or 22 of the Act of 2015 to be a parent of a child, the child, if not already an Irish citizen, shall be an Irish citizen from the date on which the declaration is made.
(a) a parental order is granted in respect of a child, and
(b) an intending parent named in the parental order as a parent of the child is an Irish citizen,
the child, if not already an Irish citizen, shall be an Irish citizen from the date on which the parental order is granted.
(4) This section shall apply to a child born before or after the commencement of this section."
As of the date of delivery of this judgment, this Act has yet to be commenced. Even if/when commenced, the new s.11A will not operate to resolve the difficulties arising in these proceedings because it has no application to birth through DAHR abroad and in accordance with the law of the place of domicile of the parent and child concerned. It is noteworthy, however, that even since the decision in A, B & C, (A Minor) the legal landscape has changed, albeit not yet in any effective manner.
92. I was advised during the hearing before me that further legislation is planned to deal with additional issues concerning international DAHR and international surrogacy. My understanding is that it is intended that this new legislation, if and/or when enacted, will address further the question of the entitlement to Irish citizenship for children of Irish parents born abroad. The indication of this future intention to the Court can have no bearing, however, on the proper interpretation of existing law.
93. In terms of the proper interpretation of s. 7(1) of the 1956 Act within this broader legal framework, it is recalled that s. 6 of the Interpretation Act 2005, considered in the decision of the Supreme Court in A, B & C, (A Minor) provides as follows:
"In construing a provision of any Act or statutory instrument, a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in that Act or statutory instrument and other relevant matters, which have occurred since the date of the passing of that Act or the making of that statutory instrument, but only in so far as its text, purpose and context permit."
94. Sections 2 and 4 of the European Convention on Human Rights Act, 2003 also impose obligations on me to interpret and apply s. 7(1) of the 1956 Act, in so far as is possible, subject to the rules of law relating to such interpretation and application, in a manner compatible with the State's obligations under the Convention provisions and to take judicial notice of the Convention provisions and of any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction, any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction, any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction.
DISCUSSION AND DECISION
Preliminary Time Issue
95. Quite properly in my view, the preliminary time issue raised in the X case was not pressed at hearing. The time issue as pleaded is that time runs from the initial refusal to issue a passport communicated to the Applicant on behalf of her children on the 23rd of December, 2020.
96. On the facts and circumstances of this case, the issue is easily disposed of. First, it is patently the case that the Applicant continued to engage with the Minister and a final response was only received in November, 2021, within three months of the commencement of these proceedings by the filing of papers and the request for a listing before a judge for an application to seek leave for judicial review. Furthermore, the issue which arises in this case has a continuing effect on the X family and comes within the broad parameters of principles established in Mungovan v. Clare County Council [2020] IESC 17, [2021] 1 IR 199 where it was found that an administrative policy with continuing effects could be challenged at any time while the policy continued to be in force and was liable to affect them. The Supreme Court in Mungovan roundly rejected the proposition that by failing to challenge a first decision, a person could be forever shut out from challenging a continuing legislative measure.
97. Were a further application for a passport to be made now, it appears clear that the Minister's position on the correct interpretation of s. 7(1) will not have changed (despite the introduction of new legislation which remains to be commenced and intended future legislation) such that any further application for a passport would continue to be refused on the same basis. Accordingly, the question of entitlement to recognition as a parent is an ongoing issue with continuing effects as it relates to a question of status and identity. No prejudice to the Minister has been identified in proceeding on the basis that the proceedings are in time notwithstanding that the last decision communicated in writing pre-dated the commencement of proceedings by more than three months. I am satisfied that the time issue pleaded, but not pressed, is not a substantive one and delay does not operate to preclude the maintenance of these proceedings.
Proper Interpretation of "Parent" for the purposes of s. 7 of the 1956 Act
98. It is not seriously in contention in these proceedings that constitutional concerns necessarily arise if there is no system for acknowledging the existence of a parental relationship arising from DAHR procedures, resulting in a failure to recognise family and personal life established as vital to the human person. Manifestly, therefore, the proper interpretation of s.7(1) of the 1956 Act requires consideration of the constitutional rights of the parent and child relationship in question to construe s. 7(1), if possible, in a manner which vindicates constitutionally protected rights. Where s. 7(1) cannot properly be interpreted in a manner which vindicates those rights, then a further issue arises as to the constitutionality of s. 7(1).
99. The constitutional rights arising for consideration were identified before me as including the right to respect for family life, personal autonomy and human dignity protected under Articles 40.3 and 41, the best interests of the child under Article 42A and the equality rights of the child and its same-sex parents protected under Article 40.1 of the Constitution.
100. I do not understand it to be disputed that the individual members of the X and Y families are entitled to protection of their family unit under the Constitution as an aspect of their personal and family life safeguarded under Articles 40.3 and/or 41 and/or 42 and the interests of the children also protected under Article 40.3 and 42A. It is surely a truism that the interests of the child are served by an alignment of the practical and legal realities governing their relationship through due recognition of the actuality of their familial relationship with Ms. Y and Ms. X and their personal identity. Further, to the extent that the rights of the marital family have been afforded particular protection under Article 41, then the Y family also benefit from these rights following the 34th Amendment to the Constitution providing for same-sex marriage.
101. At its most fundamental the constitutional rights engaged by the issues arising in these cases are rooted in the right to personhood and dignity. As Clarke J. (dissenting) observed in his judgment in M.R. v. An tArd Chláraitheoir [2014] IESC 60, [2014] 3 IR 544, the principal constitutional entitlement arising in the circumstances of surrogacy considered in that case was the entitlement which persons have, as part of their natural entitlement to human dignity, to have the State recognise their status by reference to such relationships as they may have, whether to parents, siblings, wider family members and within such family or families (however defined) as their status may place them. In my view, the same could properly be said in this case.
102. In his separate judgment in M.R., McKechnie J. found that just as the mother has rights in respect of the child which arise out of her natural relationship with it, so also it can be said that the same relationship is the basis of certain rights of the child. McKechnie J. concluded that the natural and human association between mother and child and child and mother must be recognised in law, in a way that reflects the fundamental reality of the situation (at para. 150 of his judgment). For his part, he held that there was a right at constitutional level on the facts of that case which the State in the discharge of its duty under Article 40 must recognise and thereby vindicate by requiring legislative intervention.
103. Quite apart from personal and family rights protected under the Constitution, an absence of recognition of the parental relationship on the facts of the cases before me gives rise to equality concerns under Article 40.1 of the Constitution, not least from treating genetic mothers and genetic fathers differently. In addition to the different treatment of genetic fathers and genetic mothers, children are also treated differently where they are born as the result of DAHR. Without due recognition of their parent-child relationship, the best interests of the children are not protected in like manner to the interests of children born into a traditional family relationship. In the Y case, we even see a situation where two children in the same family are treated differently depending on whether the Irish citizen was their genetic or gestational mother in circumstances where they were born into precisely the same family in reliance on a DAHR procedure carried out in reverse in each case.
104. It is in my view clear that the Constitution supports an interpretation of s. 7(1) which recognises the real-life relationships between the children in the Y and X cases with the Irish citizen whose parentage is established by the laws of Spain and Australia respectively, being their places of domicile, following DAHR as an aspect of human dignity and having regard to equality rights safeguarded under the Constitution. Accordingly, I am quite satisfied that a broad interpretation of s. 7(1) in a manner which would afford recognition of the parent-child relationships in question, if open in accordance with established principles of statutory interpretation, is that which best aligns with the requirements of the Constitution.
105. Where two constructions of s. 7(1) are urged on me and one favours recognition of the parent-child relationship and the other does not, an interpretation which respects constitutional rights is that which favours recognition of the Irish citizen as parent, thereby conferring rights deriving from this status on the child and the parent. On a proper application of the double construction rule which operates where "two or more constructions are reasonably open" (McDonald v. Bord na gCon (No.2) [1965] IR 217 at p. 239 per Walsh J.) and requires that "an interpretation favouring the validity of an Act should be given in cases of doubt" (East Donegal Co-operative Ltd v. The Attorney General [1970] IR 317 at p. 341 (again per Walsh J.)), or 'where there is an ambiguity or a choice between two constructions' (Re The Employment Equality Bill, 1996 [1997] IESC 6, [1997] 2 IR 321 at p. 369 per Hamilton C.J.), however, such a broad interpretation cannot prevail over the interpretation which accurately reflects the legislative intention. This is because a foundational concept underpinning our constitutional democracy, upon which the protection of individual rights is built, is that of a tripartite system of governance. Under a tripartite system of governance which respects the separation of powers in the manner provided for under the Constitution, the law-making role resides in the Legislative arm alone.
106. Before getting to the point of deciding whether it is possible to construe s. 7(1) of the 1956 Act in a manner which properly vindicates the constitutional rights of the X and Y family members, it is first necessary to consider the plain language of s. 7(1), its context and purpose to decide the meaning borne by the words used in s. 7(1) to thereby ascertain the intention of the Oireachtas in providing for citizenship by descent in terms of s. 7(1). The double construction rule has no role where the intention of the Legislature is clear. I cannot rewrite s. 7(1) to bring it into conformity with the requirements of the Constitution as I see them. This is not my constitutionally prescribed function. It is only where more than one meaning is open on the language used in context and having regard to purpose, that the double construction rule operates to require that I favour that interpretation which best gives effect to the requirement under the Constitution to protect and vindicate identified personal rights, including rights to dignity, to identity and to equal treatment.
107. Read in context and tracing its legislative and constitutional history, the purpose of s. 7(1) of the 1956 Act was clearly to provide in law for citizenship by descent in a manner envisaged by Article 9.2 of the Constitution. Article 9.2 itself is historically connected with Article 3 of the Irish Free State Constitution and Article 3 is an aid to construction in terms of context and purpose. As clear from the legal framework addressed above, Article 9.2 of the Constitution is rooted in principles of conferral of citizenship in accordance with jus sanguinis or blood pedigree.
108. It is true that when s. 7(1) was amended in 1987 (by s. 5 of the Status of Children Act, 1987), the meaning of "parent" for the purpose of conferring a right to citizenship by descent based on blood or biological connection was binary. It could only have meant the birth mother and the biological or genetic father. It is nonetheless key, in my view, to the proper interpretation of s. 7(1) that it was clearly intended to provide for citizenship based on being the biological child of an Irish citizen, whatever the sex of the parent.
109. The Applicants in both cases rely on the principle of leges posteriors priores contrarias abrogant (later laws abrogate earlier laws) to contend that any legal or statutory definition of the term "parent" that was in place up to the enactment of ss. 4 and 5(1) of the CFRA now falls to be construed as including same-sex parents and/or a non-biological parent for the purpose of citizenship by descent under s. 7 of the 1956 Act. The effect of this principle on the proper interpretation of s. 7 of the 1956 Act was recently considered by the Supreme Court in A, B & C (A Minor) v. Minister for Foreign Affairs.
110. In A, B & C (A Minor), the Supreme Court considered the position of the child born by surrogacy to a same-sex male couple where the husband of the genetic father was an Irish citizen. The eggs used were from an anonymous but traceable donor, artificially inseminated using sperm from the Irish citizen's husband and then implanted in a surrogate who gave birth to the child. As no challenge had been brought to s. 7 of the 1956 Act, the decision turned on the proper meaning and application of s. 7(1) of the 1956 Act.
111. The issue was whether the effect of s. 7(1) was that the child born by surrogacy was an Irish citizen in circumstances where, by virtue of an order of the courts of England and Wales (where the same sex-couple and child were domiciled) and in the absence of provisions under Irish law for the recognition of foreign court orders, the Irish citizen husband and the child's genetic father were the child's parents by reason of subsequent court declaration but the Irish citizen was not the child's parent at the time of birth. There are clear differences between the cases before me and A, B & C (A Minor), the primary difference being that unlike the position regarding DAHR, the State had not legislated for surrogacy at all with the result that very significant policy considerations arose in respect of a value laden issue.
112. The Minister's position in A, B & C (A Minor), as in this case, was that the reference to "parent" in s. 7(1) is to a genetic father and the woman who gave birth to the child in question. For an Irish citizen to pass citizenship by descent, that person must be both a citizen, and the child's parent, at the time of his or her birth. The Minister adopted the position that the effect of s. 5 of the CFRA is that the "parents" of a donor-conceived child for the purposes of s. 7(1) of the 1956 Act comprise the woman who gave birth to the child and (in a case in which the relevant declarations were made by her at the time the DAHR procedure was performed) her spouse, civil partner or cohabitant. Because the provision thus interposes these persons as "parents" the Minister stated that if either are Irish citizens, the child is an Irish citizen. Conversely it followed from this interpretation of the Act that the Irish citizenship of a donor is not relevant to the citizenship of a child born as a result of DAHR. However, where parentage was derived from the recognition provisions in ss. 20-23 of the CFRA, the position of the Minister was that such recognition was wholly prospective, and thus that a non-genetic parent whose status as such derived from these sections could not pass citizenship under s. 7(1).
113. In his judgment, Murray J. stated that issues reduced themselves to whether s. 7(1) refers to "parent" only in this narrow sense urged by the Minister or whether it uses the term to include persons who become parents after the birth of a child by virtue of a court order or rule of law. Of note, the Court was expressly not concerned with the situation which occurs in the case of Ms. Y, namely where a donor is the genetic parent (through provision of the egg which is subsequently fertilised and implanted).
114. While the issues in these cases are not on all fours with the surrogacy situation under consideration in A, B & C (A Minor), there are many parallels between the arguments made in that case and in the cases now before me. As in these cases, the applicants deployed the so-called 'double construction rule' - the principle (referred to above) that if two interpretations of a statutory provision are reasonably open, one of which would render legislation contrary to the provisions of the Constitution and one of which would not, the court should adopt the 'constitutional' interpretation of the Act. They also relied upon a similar interpretative obligation under the 2003 Act and advanced the claim that having regard to s. 6 of the Interpretation Act, 2005, s. 7(1) should be given what they describe as an 'updated' meaning. They maintained that the construction of the 1956 Act urged by the Minister would render s. 7(1) inconsistent with both the Constitution and the Convention in discriminating between (and in failing to protect the rights of) different types of constitutional families, as well as by discriminating between children based upon their parenthood, and/or between heterosexual and same-sex couples.
115. In his judgment, following detailed consideration of the requirements of private international law, Murray J. pointed out that the fact that a foreign parental order may be recognised in Ireland does not, automatically, mean that whenever the term "parent" is used in a statute, persons recognised under a foreign law as enjoying the status of "parent" come within the intendment of the legislation. Whether or not they do, depends on the proper construction of the relevant provision. He added that in construing s. 7(1) there are two separate (but overlapping) issues of construction that arise: (a) whether s. 7(1) is a provision operative only where the persons who are said to be the "parent[s]" of the child enjoyed that status at the time the child was born; and (b) whether the provision is limited (as the Minister contended) to the genetic father and birth mother of the child save (as in the case of DAHR) where legislation otherwise provides.
116. Murray J. pointed out that in answering these questions, it is to be remembered that the cases considered most recently in the decision of the Supreme Court in Heather Hill Management Company CLG and Anor. v. An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313 had put beyond doubt that language, context and purpose are potentially in play in every exercise of statutory interpretation, none ever operating to the complete exclusion of the other. He recalled that the starting point in the construction of a statute is the language used in the provision under consideration, but the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting or contextualising the apparent meaning of those words.
117. Carrying out that interpretative exercise, Murray J. observed that prior to advances in medical sciences in the late twentieth century enabling in vitro fertilisation, it was a medical and scientific fact that the woman who gave birth to a child was that child's mother: mater semper certa est. Until those developments, neither science nor medicine admitted of the possibility that a woman other than the birth mother was the genetic mother of the child; the law thus proceeded on the basis that the woman who gave birth to a child is in fact the mother of the child and (it has been said) that that is "the ordinary and natural meaning" of the term (M.R. at para. 175 per Murray J.) or, as it has been described, the meaning at common law (R (McConnell and anor.) v. Registrar General for England and Wales [2020] 2 All ER 813 at para. 149).
118. While noting that the common law recognised only genetic paternity, Murray J. pointed out that paternity was affected by a legal presumption that the husband of a woman who gives birth during a subsisting marriage is the father of her child. That presumption can now be rebutted, and indeed by statute if spouses are living apart following separation and a child is born to the wife more than ten months afterwards, the presumption does not apply. The man who provides the genetic material from which the child is formed is, as a matter of law, the father - even if his identity is not known. This defines the starting point for the interpretation of the noun 'father' where it appears in legislation.
119. Against this background, Murray J. continued:
"Noting all of the foregoing, it seems to me that construing the 1956 Act, as amended, without regard to the double construction rule or cognate rules of construction required by the 2003 Act, the ordinary rules of interpretation would dictate that s. 7(1), when referring to 'parent' referred to the genetic father and the woman who gave birth to the child and in particular did not contemplate non-biological legal parentage."
120. This followed, Murray J. said from the four considerations as follows:
I. First, this was, at the time of the 1956 Act, the ordinary and usual meaning of the terms "mother", "father" and "parent", and it is that meaning and the consequent blood relationship between "parent" and child that underlay the concept of citizenship by descent to which both the 1935 and 1956 Acts sought to give effect: jus sanguinis. In this regard, he stressed that the question of whether the reference to "parent" includes the genetic mother was not before him.
II. Second, the conjunction in s. 7(1) between "birth", "parent" and the latter's citizenship more naturally suggested, in Murray J.'s view, that these would temporally coincide than that they would not, and that - of course - would have been the case if "parent" was given its traditional meaning. In the surrogacy context, recognition of parental status may not come into being until many years after birth, when the Irish citizen acquires a legal status of parentage.
III. Third, the fact that the Oireachtas made specific provision first in the Adoption Act 1952, and thereafter in s. 11 of the 1956 Act for the position of adopted children was considered entirely inconsistent with the view that s. 7(1) was intended to capture those whose status as "parent[s]" could be derived from a legal rule or order (as opposed to a biological connection with the child).
IV. Fourth, there was nothing in the subsequent amendments to the provision that would lead to the conclusion that the Oireachtas intended to alter that basic structure, and indeed the very fact that in 2010 it both re-enacted s. 11 and expressly extended the scope of that provision to foreign adoptions which were recognised in Irish law would all strongly suggest that it did not.
121. For these reasons, on a plain and literal interpretation of s. 7(1), the Supreme Court concluded that s. 7(1) did not fall to be interpreted as naturally including the subsequently recognised parent of a child born through a third-party surrogate.
122. In his judgment, Murray J. went on to consider the double construction rule in constitutional interpretation. He identified two problems with the application of the rule for the interpretation pressed on behalf of the applicants in the case of surrogacy and these problems informed the scope of the ratio of the judgment for present purposes.
123. In the first instance, he found that an application of the rule so as to enable persons who were not "parent[s]" at the time of the birth of the child in question to pass citizenship by descent involved not merely a contortion of the language used in the provision, but a fundamental distortion of the scheme put in place by the 1956 Act for the passing of citizenship by descent. While this contortion of language was considered problematic, it was not considered fatal.
124. The more fundamental problem, as articulated by Murray J., was that using the double construction rule to fundamentally re-orientate the structure and direction of a legislative scheme by changing an essential feature of that regime was not permissible. As he explained, the double construction rule allows the adjustment of a single statutory provision to align it with constitutional requirements, it does not thereby permit the imposition of an entirely new legislative regime. He considered that s. 7(1):
"uses the term 'parent' in its biological or genetic sense, and was not intended to include persons whose status as parents derives solely from legal provision and/or court order nor, for that matter, does it extend to de facto or social parent/child relations. In this way, it envisages persons from whom Irish citizenship shall be derived as enjoying the status of 'parent' at the time of the child's birth. Within the structure so established, citizenship operates and is objectively discernible (whether or not actually discerned) from a specific and identified point in time. That reflects not merely the operative language in s. 7(1) ('at the time of his or her birth either parent was an Irish citizen'), but also the fact that the subsection, in making provision for posthumous children clearly so assumed ('or would if alive have been an Irish citizen')."
125. Murray J. considered that the interposition of a new regime under which parenthood is purely legal and in which citizenship operates from birth, but only after an event that occurs some-time after the birth, sits most uneasily with the structure of s. 7(1) of the 1956 Act. He observed further however, that the fact that it may only be upon the making of a declaration of parentage under the Status of Children Act, 1987 that the fact that a child has an Irish citizen genetic father is evident, was a situation distinguishable from the situation before him. This was because in the situation of the genetic child, the child was always an Irish citizen. The effect of the declaration of parentage being to establish that this was the case. That (and the converse situation where it subsequently emerges that the Irish citizen man believed to have been the father of a child is not in fact his father) was considered by Murray J. to be entirely different from the construct for which the applicants in the case before him contended, which was one in which the child at birth is not a citizen, but acquires that status by descent after - and potentially some-time after - he or she is born.
126. Murray J. pointed to the effect of reading s. 7(1) of the 1956 Act in the manner contended as being to "fundamentally alter" the entire scheme, in particular rendering s. 11 at best otiose and, at worst, a provision which creates an entirely unexplained and unjustified discrimination between adopted children and children the status of whose parents derive from a foreign parental order, with the latter obtaining citizenship from birth and the former doing so only from the date of the adoption order or, in the case of a foreign adoption, its recognition. This, he concluded, would involve the applicants:
"not merely changing the meaning of an individual provision in a fundamental respect, but also the interposition into the provisions governing citizenship by descent of a circumstance that was clearly never envisaged by them. That would not be an appropriate application of what remains no more than a rule of statutory interpretation."
127. Addressing the arguments made in reliance on s. 6 of the Interpretation Act, 2005, Murray J. considered that it had no application in the situation before him because the proviso to the provision - "but only in so far as its text, purpose and context permit" - necessarily limits the operation of the provision to those cases in which the "updated" construction can be accommodated within not only the language of the provision in question, but also its object and background. Murray J. said that it was because of these same considerations of purpose and context that he had concluded that s. 7(1) would not "bear" the construction suggested by the application of the double construction rule because it would involve a distortion of a legislative scheme. Similarly, he concluded, s. 6 could not be used to obtain the same effect.
128. I consider the decision of the Supreme Court in A, B & C (A Minor) binding on me insofar as the interpretation of s. 7(1) must be construed as not including the non-genetic parent. This, I think, is clear from the importance attaching to "from birth" and "at the time of his or her birth" by Murray J. when construing the section. He referred to these words as intending to mean that all conditions for the acquisition of citizenship were present (whether, in the case of the identity or for that matter, citizenship of the father is known) at the time of the birth of the child.
129. It seems to me that this interpretation of s. 7(1) of the 1956 Act found in A, B & C (A Minor) would exclude any parent whose status as a parent was dependent on a formal recognition process whereby parental rights were confirmed post birth, such as the Irish citizen same-sex partner of the gestational mother in the X case before me. Thus, even though Irish law has made provision for the recognition of such a relationship in the case of births occurring in the State, or prospectively in respect of births occurring outside the State, domestic legislation in its current form cannot address the "from birth" requirement of s. 7(1). In view of the careful caveat in A, B & C (A Minor) in relation to genetic mothers, however, the findings do not preclude recognition of parentage in the Y case.
130. The Respondent relies on the judgment of Jackson J. in B.G. v. J.C. [2023] IEHC 785 to support an argument that a parent for the purpose of s. 7(1) of the 1956 Act cannot include Ms. Y or Ms. X. In B.G. v. J.C., Jackson J. found the issue of parentage under Irish law to be well established in a case relating to a declaration of parentage and certain parental responsibility orders in respect of twin children on application of a biological father. The broad background to the case was outlined in the judgment from which it appears that the gestational mother was unmarried and desirous of having a child or children using a donor egg and the biological father, at the time of conception, was a single man in a homosexual relationship with a long-term partner who he later married. The biological father contended for a co-parenting arrangement whereas the gestational mother contended that the sole role of the biological father was to provide genetic material (sperm) to enable conception and that it was never envisaged that he would have an ongoing role in the lives of the children. No formal agreement was reached.
131. Summarising Irish law on the subject Jackson J. said (at para. 15):
".....The woman who gives birth to a child is the lawful mother of that child regardless of whether or not there is any genetic link between them. The man who provides the genetic material (sperm) for the conception of a child is the father of the child under Irish law but the circumstances pertaining will dictate if he has parental rights and the nature of same. Where these parties are married, they are joint guardians of the child. Where they are not married, the lawful mother is the sole guardian while there are a variety of routes by which such unmarried father may become or be declared to be a guardian to a child including by a consent process. The statutory right to apply route is the applicable one in the current circumstances. Therefore, whatever the arrangements between the parties in the context of the conception of the children or thereafter, the manner in which parentage is derived is straight forward in the current circumstances."
132. Although the Respondent relies on the judgment of Jackson J. for its statement of Irish law to support an argument that a parent for the purpose of s. 7(1) of the 1956 Act cannot include Ms. Y or Ms. X, it seems to me that her position was not so clear-cut and cannot be automatically applied to this effect. Afterall, Jackson J. referred to the fact that the respondent (the mother) in the proceedings before her had sought to argue that, as a mere donor of genetic material, the Applicant was not the lawful father of the children and was not entitled to a consequent declaration of parentage. She expressly allowed that different considerations may arise where the CFRA applies. She further observed (at para. 15):
"This argument might be pertinent if the provisions of Part II of the Child and Family Relationships Act, 2015 applied but they do not. The provisions of that part are not complied with in this case for a number of reasons including the absence of necessary consents and the fact that the DAHR procedure was undertaken outside Ireland in Ukraine. Thus, the Applicant is entitled to a declaration of parentage if he can show his genetic link with the children. On the evidence before me, I am satisfied that he has done so. It is important to note that this declaration of parentage is a scientific matter, unrelated to the welfare of the children."
133. Notwithstanding the "well-established" position regarding parentage in Irish law, this is an area which has witnessed significant recent changes and are likely to undergo further change, principally through the provisions of the CFRA in relation to DAHR and yet to be commenced legislation in relation to surrogacy. These changes are such that traditional understandings can no longer be unquestioningly relied upon.
134. Following on from the decision in A, B & C (A Minor), it remains an open question as to whether s. 7(1) falls to also be construed as excluding the Irish citizen genetic mother in the Y case before me. There is a good basis in the reasoning of the Supreme Court, as apparent in the judgment of A, B & C (A Minor) for doubting that the decision of the Court in that case should operate to preclude an interpretation of s. 7(1) which would confer entitlements on the genetic child of an Irish citizen born abroad with donor assistance. Distinguishing the narrow or traditional interpretation adopted in A, B & C (A Minor) depends in some measure on the importance attaching to the biological or genetic factor. This is not a straightforward question because the system of DAHR in many countries (including Ireland) depends on the biological or genetic parent (e.g. the anonymous sperm donor) renouncing rights as a parent. This surely means that the genetic link can no longer be accorded primary importance in determining parental status and the rights which derive therefrom. Nonetheless, it is clear from his decision in A, B & C (A Minor) that Murray J. was at pains to indicate that different considerations may pertain to a genetic mother, a question which went beyond the scope of the proceedings before the Supreme Court in that case. This is the very question which is now squarely before me in the Y case. Accordingly, I propose to now address whether s. 7(1) may be construed to recognise Ms. Y as parent to her genetic son born using DAHR, even though she was not the gestational mother.
135. It is, of course, immediately striking that the situation of the genetic mother in the Y case could readily be likened to that of a biological or genetic father, already recognised as a parent under s. 7(1). The genetic or biological connection is present, through the provision of the egg, not just from birth but from conception. In the case of the genetic mother therefore, the declaration of parentage might be considered a recognition of a pre-existing biological fact. If the genetic or biological link was intended by the Oireachtas as a determining feature when enacting s. 7(1) of the 1956 Act, then this feature is present.
136. As genetic mother, the blood relationship referred to in Murray J's first consideration exists. Furthermore, the temporal link adverted to in his second consideration is also present. These are two significant features distinguishing the Y case from the surrogacy situation under consideration in A, B & C (A Minor).
137. As for the purpose and intention of the drafters in crafting s. 7(1) of the 1956 Act, while they likely did not have had modern scientific developments in contemplation in 1956, it could scarcely have been their intention to treat a genetic mother any differently to a genetic father whose sperm fertilises the egg prior to implantation, particularly in view of the very strong prohibition on gender discrimination set out in Article 9.1.3 couple with a commitment to equality as human persons under Article 40.1 of the Constitution. Both the male and female genetic components contribute equally to the embryo subsequently implanted and carried to term by the gestational mother. Both contribute to making the child's DNA. It is indeed difficult to rationalise why the genetic father and mother would not be treated the same in terms of the conferral of citizenship by descent under s. 7(1) of the 1956 Act, other than the fact that it was not conceived of as possible in 1956 that the person giving birth would be other than the genetic mother.
138. I am conscious, however, that whilst the means did not exist to achieve human insemination artificially when the 1956 Act was enacted, this was but one of the factors relied upon by the Supreme Court in preferring a narrow construction of s. 7(1) in A, B & C (A Minor). There is a real sense, however, at least in my view, in which the situation of the genetic mother in the Spanish case differs to the situation under consideration in A, B & C (A Minor). This is because the genetic mother is in fact in a situation more akin to that of the father whose status is only recognised subsequently under the provisions of the Status of Children Act, 1987.
139. I remain mindful, however, that Murray J. supported his conclusions in A, B & C (A Minor) regarding the correct interpretation of s. 7(1) with reference to the logic of the Supreme Court in M.R. v. An tArd Chláraitheoir. There, the court was concerned with the question of whether the term "mother" in the Civil Registration Act, 2004 referred to the birth mother (as the court found to be the case) or the genetic mother (as the applicant had contended) in a surrogacy context. Rejecting a contention that the court should afford the provision an "updated" meaning, O'Donnell J. observed:
"On the assumption for this aspect, that the legislation whether in 1880 or in 2004 identified the person giving birth as the mother, then to interpret the legislation to make the person providing the ovum and therefore the DNA as the mother rather than the birth mother would be to alter and reverse the original meaning of the legislation, rather than merely interpreting it to apply not only to the original situation but also to a circumstance not envisaged at the time."
140. In Murray J's view in A, B & C (A Minor) all s. 5 of the CFRA shows is that the Oireachtas could, where it felt it appropriate so to do, expressly align parenthood as envisaged by that Act with other legislative provisions.
141. Somewhat analogous reasoning underpinned the separate decision of Denham C.J. when she considered whether "mother" in the surrogacy context could be construed as including genetic mothers. She pointed out that any law on surrogacy affects the status and rights of persons, especially those of the children; it creates complex relationships and has a deep social content. It was, thus, in her view, quintessentially a matter for the Oireachtas. She considered that there was a lacuna in the law as to certain rights, especially those of the children born in such circumstances. Such lacuna should be addressed in legislation and not by the Court (at para. 116). She observed that there was clearly merit in the legislature addressing this lacuna and providing for retrospective situations of surrogacy but added that under the then current legislative framework it was not possible to address issues arising on surrogacy, including the issue of who is the mother for the purpose of the registration of the birth. The issues were considered important, complex and social relating to matters of public policy for the Oireachtas because they related to the status and rights of children and a family.
142. While the fact that the genetic link was clearly important in 1956 in the conferral of citizenship and scientific changes are such that it is now possible for a mother other than the genetic mother to carry a baby to term is not necessarily dispositive of the issue in the Y case as a factor which alone distinguishes the circumstances of the genetic mother from the position of the parents considered in A, B & C (A Minor), it seems to me that the Y case is, nonetheless, very different to the situation before the Supreme Court in A, B & C (A Minor) or, indeed, the Supreme Court in M.R.
143. The different considerations arising in the Y case are clear from a careful reading of both the M.R. and A, B & C (A Minor) judgments and the reasons set out for the decisions reached.
144. It is important to remember that M.R. did not raise any question of the enforceability or validity of a surrogacy agreement or the recognition or enforcement in the State of surrogacy agreements performed in jurisdictions with legislative codes which permit such agreements. It related exclusively to the failure of the State to legislate for surrogacy domestically in an intensely policy laden area in which concerns about the commercialisation and commodification of women's reproductive organs feature and require to be weighed. Despite some obvious overlap, the case involved very different issues.
145. Unlike the position in M.R. and crucially in my view, the State has in fact already provided for the recognition of the parent-child relationship of children born to same-sex couples using donor assistance once the birth occurs in the State. Indeed, Irish public policy may be discernible in legislation enacted but not commenced. Also relevant and a factor relied upon on behalf of the Applicants was the 34th Amendment to the Constitution in 2015 permitting and protecting same-sex marriages as part of our constitutional order and the fundamental law of the State.
146. It remains the case that where the Oireachtas has seen fit to craft bespoke legislation for different categories of children when necessary, but has not yet done so in the case of a children born abroad through donor assisted interventions in a manner which allows for recognition of parental status from birth, caution is required not to construe existing legislation in a manner which radically alters and reverses its original meaning. It is clear, however, that from a policy perspective, the Legislature has weighed the different considerations and decided to adopt a policy whereby the State recognises the parent-child relationship of children born to same-sex couples using DAHR, subject to prescribed safeguards, provided the child is born in the State. The result is that the only additional consideration which arises is that of recognition of that relationship when the child is born abroad in accordance with a procedure recognised as lawful under the law of the child's domicile or habitual residence.
147. It seems to me that State policy discernible from provisions already made through law together with anticipated further legislation referred to in argument before me may also be informed by constitutional provisions which require to be respected in any new laws introduced in these areas. The Constitution requires that human persons be held equal before the law. It requires respect for the personal rights of citizen in so far as practicable, recognition of the inalienable and imprescriptible rights of the family unit and it commits the State in all its arms to respect and vindicate the imprescriptible rights of all children and to have due regard to their best interests as a paramount concern.
148. Having regard to these fundamental constitutional requirements, it is difficult to see what policy reasons there could be for not recognising parent-child relationships following DAHR carried out in accordance with laws which replicate safeguards present in Irish domestic law under which the relationship would be recognised if the child were born in the State. This puts the question of recognition of the relationships in the cases before me in a fundamentally different position to that of the surrogacy relationships under consideration in A, B & C (A Minor).
149. While recognition of the genetic parent in the case of a foreign procedure may throw up additional issues where a framework already exists for regulating these issues domestically, the issues of policy arising in M.R. are not present to the same degree. In the absence of legislation addressed to recognition in which the Legislature prescribes in a manner which gives effect to any deliberate policy choices regarding the recognition of a foreign procedure, the application of common law rules of private international law can operate to fill a legislative lacuna. These well-established rules enable recognition in the State of status established under the law of domicile or habitual residence of the person(s) concerned, provided public policy considerations do not arise to preclude such recognition.
150. As for A, B & C (A Minor), as already noted above, important points of difference between the circumstances in that case and the circumstances of the Y case now before me include, crucially, the presence in the case of a genetic mother of a biological and temporal connection resulting in obvious comparability with the position of the genetic father. The Supreme Court itself was at pains to stress in A, B & C (A Minor) that the situation of the genetic mother gives rise to different considerations. Great emphasis was placed by both Murray and Hogan JJ. in their separate judgments on the importance of the Irish citizen being a parent at the time of birth, a factor that is present as a matter of biology on the facts of the Y case where the child was born to the genetic Irish citizen mother in Spain using DAHR.
151. In light of the foregoing and having regard to the express language of the Supreme Court in A, B & C (A Minor) in making it clear that the case of a genetic mother was not captured by the ruling and presented different and distinct considerations and from which it is discernible that the Supreme Court were anxious to identify the distinct situation of the genetic mother, it seems to me that interpreting the word "parent" in a broader manner to include a genetic mother whose status as parent is recognised by the laws of her domicile is open and permissible and is the correct interpretation on an application of the double construction rule.
152. Giving a broader interpretation to "parent" under s. 7(1) in a manner which encompasses the genetic mother as well as the genetic father, does not change the meaning of s. 7(1) in a fundamental respect but merely makes allowances in a manner permissible within the parameters of principles of statutory interpretation for changes in the law, social conditions and technology while still remaining consistent with text, purpose and context of s. 7(1) of the 1956 with regard to the conferral of an entitlement to citizenship by descent.
153. In circumstances where s. 7(1) may be interpreted as providing for the conferral of an entitlement of citizenship by descent by a genetic mother who is an Irish citizen exercising parental rights, the remaining question in the Y case is whether the exercise of parental rights by Ms. Y is recognised in Irish law.
154. In terms of the entitlement of the declaration of parentage in the Y case to recognition in this jurisdiction, the decision of the Supreme Court in Adoption Authority of Ireland v. C and D and the AG [2023] IESC 6 cited by Murray J. in A, B & C (A Minor), confirms and restates the predominance of the law of the place of domicile in the regulation of status, subject only to public policy considerations.
155. Irish common law rules provide for recognition of status acquired under foreign law. Accordingly, where no legislation is introduced, the question of recognition in the State of status deriving from a foreign procedure and recognised by the law of domicile or habitual residence of the person concerned is governed by the common law rules of private international law. These common law rules require that where status is recognised under the law of domicile, that status properly falls to be recognised in the State absent public policy consideration warranting a refusal to do so.
156. I am mindful that in areas of social and family relationships where approaches differ radically between groups and generations, I must be cautious in recognising a status not expressly provided for in domestic legislation due to a risk of trespassing into a policy domain properly falling within the parameters of Legislative power. This is so even where the status exists in accordance with a foreign law and would be recognisable in Irish law were the child born in Ireland. It seems to me, however, that refusing to recognise the parent-child relationship status in accordance with rules of private international law on policy grounds runs similar risks of judicial overreach, heightened in this case where a policy of recognising family relationships occurring in the State is clearly established.
157. I have concluded that an application of common law private international principles requires that I form a judgment on what Irish public policy is, as apparent in duly enacted domestic laws, in deciding whether such policy operates to preclude recognition. I am mindful that this must not be an exercise in identifying what I might consider Irish public policy ought to be. Such an approach would be incompatible with the judicial function. Instead, the exercise requires me to identify whether there is already existing a State public policy precluding recognition. In this regard, the provisions of the CFRA speak to a public policy which recognises family relationships using DAHR, as do the provisions of the, yet, un-commenced 2024 Act.
158. The State's public policy as to recognition of parental rights deriving from the birth of a child using DAHR abroad is also informed the strong public policy interests in safeguarding the rights of children which are particularly compelling under Article 42A of the Constitution. Coupled with rights safeguarded under Articles 40.1 and 40.3, there is support in the Constitution for a finding that Irish public policy should not be considered to operate to preclude the recognition of the orders made with respect to the Y family in Spain in accordance with Spanish law, Spanish law being the law of domicile or habitual residence.
159. Although there may be minor differences between Spanish and Irish law regarding the regulation of DAHR and the recognition of parental status, it does not seem to me that any proper policy basis has been made out precluding recognition. The legislative regime in Spain is very similar to the State's regime in respect of birth using DAHR. One minor difference may exist between the approach to anonymity of the donor. In my view, policy considerations which weigh in favour of recognition, far outweigh the potential countervailing consideration deriving from a limitation (subject to exceptions) on the right of access under Spanish law to information concerning genetic identity (being the principal difference identified between the Spanish and Irish regime) when the default position under Irish law requires access to this information (see ss. 13(b)(iv) and 35 of the CRFA).
160. By a parity of reasoning to that of Murray J. in A, B & C (A Minor), there is no reason to conclude that the parental order made by the Spanish Courts should not be recognised in this jurisdiction for the purpose of establishing an entitlement to citizenship based on the status of the parent as an Irish citizen in circumstances where:
I. The child was born in Spain and lives in Spain;
II. The evidence establishes that the married couple in the Y case were domiciled in Spain at the time the parental order was made;
III. There is satisfactory evidence as to Spanish law before me which combined with the other evidence adduced on affidavit proves that the Irish citizen is recognised as a parent under Spanish law;
IV. It is established that had the procedure been carried out in Ireland after May, 2020 (which it was not), Ms. Y would be recognised as a parent under s. 5 of the CFRA; and
V. No sufficient reason of public policy for refusing recognition in principle has been identified.
161. In contrast with the position of the genetic mother and child in the Y case, I see no similar basis in the Supreme Court decision in A, B & C (A Minor) to permit recognition of the non-genetic, non-gestational partner in a same-sex couple who has a child abroad using DAHR for the purposes of conferring an entitlement to Irish citizenship. Undoubtedly, the position of the X family is also distinguishable to the extent that unlike the position regarding surrogacy under consideration in A, B & C (A Minor), Irish law now makes provision for the recognition of parentage involving donor assistance through the provisions of the CFRA, the only issue being the recognition and effect of foreign orders. It seems to me, however, that this important distinguishing factor is not enough given to permit me to construe s. 7(1) as applying to the non-genetic, non-gestational parents in view of the clear ratio of A, B & C (A Minor) and the focus in the reasoning in that judgment on parentage "from birth" or the so-called temporal feature of s. 7(1), tied with what I see as a Legislative intention to confer citizenship by descent based on sanguinity or a biological/genetic link.
162. Although in the X case the evidence demonstrates that Australian law recognizes parentage from birth, there may well be other instances where the Irish citizen acquires the legal status of parentage sometime later. Indeed, under the CFRA, recognition of parentage in the case of the non-genetic, non-gestational parent where DAHR is provided abroad is not from birth but from the date of recognition by a court on foot of an application in that regard. Irish law currently makes no provision for the retrospective recognition of parental status from birth in such cases.
163. To construe s. 7(1) of the 1956 Act more broadly as embracing a non-blood relationship where recognition depends on a court order post-dates birth (albeit arguably the court order in this case was an exercise in caution and recognition flows as a matter of Australian law) seems to me to clearly alter the meaning of the legislation in a manner eschewed in M.R and indeed in A, B & C (A Minor) itself. Afterall, as already stated above, when the children in the X case were born, no provision existed in Irish law to recognise their family relationship with the non-genetic, non-gestational mother. At this juncture, Irish law provides only for prospective recognition of such DAHR relationships where the child was born before the commencement of the CFRA in May, 2020.
164. A fundamentally important consideration weighing on me in this analysis is the fact that the conferral of citizenship is a jealously guarded incident of State sovereignty in accordance with Article 9 of the Constitution, as recently confirmed by the Supreme Court in A.P. v. Minister for Justice and Equality [2019] IESC 47, [2019] 3 IR 317. It seems to me therefore that if I were to construe s. 7(1) of the 1956 Act as conferring a right to citizenship by descent through the non-genetic and non-gestational mother, I would be straying beyond the interpretative role of a judge under the Constitution into the area of law-making in breach of the proper parameters set by the separation of powers doctrine. Indeed, it would be difficult to reconcile any other conclusion with the import of the decision of the Supreme Court in A, B & C (A Minor), notwithstanding the distinguishing features.
165. Although it is true that where the Oireachtas has already legislated for recognition prospectively of parental relationships of the type involved in the X cases, going some way towards removing complexity from a policy perspective in that the Oireachtas has already engaged in a consideration of the interconnected rights of the parties concerned, it is undeniable that a legislative lacuna remains.
166. I have a real fear that filling this lacuna by relying on the interpretative approach advocated on behalf of the X family could lead to ad hoc and unforeseen outcomes. This is particularly true where the law of some foreign countries may differ widely from Irish law in the way DAHR is regulated, although this is also a concern to some lesser extent in respect of an interpretation of s. 7(1) which includes the "genetic" mother. For example, an issue arises as between different legal regimes which provide for DAHR recognition from the fact that the right to know one's genetic identity, a recognised derivative constitutional right under the law of the State, is trammelled by foreign laws which restrict or preclude a child accessing this information under the DAHR regulatory regime applicable under the law of their domicile or habitual residence.
167. A separate issue potentially arises in the even more stark case of a child born abroad where the law of domicile neither recognises nor protects the family or parental relationship, happily not the situation in these cases. In these cases, we are concerned with the more straightforward, but still far from straightforward, issue of recognition of foreign parental orders where there is not a direct equivalence between Irish law and the law of domicile.
168. It is neither desirable nor permissible having regard to the limited role of the court in interpreting the law within the parameters fixed by the separation of powers and the constitutionally prescribed function of the Oireachtas as sole and exclusive law-making in the State that the broad interpretation contended for on behalf of the X family be endorsed by me. While public policy issues in relation to the recognition of parental and family relationships in the case of children born in the State are largely addressed by the terms of the CFRA, nonetheless real public policy issues remain requiring a considered legislative response in the treatment of non-domestic DAHR and whether and when retrospective recognition of parental and family relationships may occur in respect of children born abroad in a manner which establishes eligibility for the conferral of citizenship by descent or as birthright.
169. This is not the end of the matter, however, as the question remains whether the interpretation of s. 7(1) of the 1956 Act urged by the Minister, which I have concluded continues to exclude the X family, is one which is compatible with the Constitution where an issue arises as to whether this interpretation means that there is a failure to vindicate the right to equal treatment and the personal rights of the children and family concerned. Accordingly, the question of whether Irish citizenship law is unconstitutional by reason of its failure to provide for citizenship by descent in the case of non-genetic parental relationships of Irish citizens arising from DAHR performed abroad and recognised by the lex domicilii of the Irish citizen and the child(ren) involved requires to be directly scrutinised.
Constitutionality of 1956 Act insofar as it Fails to Recognise Rights where children are born through DAHR Abroad - the X Family, Australia
170. This case differs in one very important respect from both A, B & C (A Minor) and M.R. Whereas no constitutional challenge was brought to a provision of domestic law in those cases, here a claim is advanced that s. 7(1) of the 1956 Act is unconstitutional and/or that the failure to provide a legislative route to birthright citizenship for the recognised child of an Irish citizen is in breach of constitutionally protected rights. It is expressly pleaded that the denial of a passport to each of the children constitutes a non-recognition of the Irish citizen as a parent to her sons and of her family unit. This in turn is alleged to constitute a failure by the State to recognise and or protect the rights of the children born following DAHR and their Irish citizen parents contrary to Articles 40.1, 40.3, 41 and 42A of the Constitution.
171. It is helpful that, having concluded that s. 7(1) of 1956 Act did not bear the construction urged by the Applicants and even though there was no challenge to the constitutional validity of the provision in that case, in their respective judgments in A, B & C (A Minor), both Murray and Hogan JJ. nonetheless addressed some of the constitutional issues identified by the IHREC in amicus submissions. Although the position considered in both judgments is different to that which remains in relation to the X case because unlike in the case of surrogacy, Irish law makes provision for the recognition of parentage involving DAHR by reason of the provisions of the CFRA, the judgments provide some further guidance on the constitutional question.
172. From a constitutional perspective, the judgments in A, B & C (A Minor) principally touch on considerations flowing from Article 40.1 of the Constitution and it is to this provision of the Constitution I turn first.
Article 40.1
173. As O'Donnell J. observed in M.R. (at para. 36), any equality argument involves the proposition that like should be treated alike. An assertion of inequality involves identifying a comparator or class of comparators which it is asserted are the same (or alike), but which have been treated differently (or unalike). In each case, it is necessary to focus very clearly on the context in which the comparison is made. It is important not simply that a person can be said to be similar or even the same in some respect, but they must be the same for the purposes in respect of which the comparison is made.
174. The claim for unequal treatment advanced on behalf of the X Family is expanded on in argument before me as follows:
I. Section 7(1) discriminates based on sexual orientation and/or gender (as the requirements for citizenship by descent differ for same sex relationships when compared with heterosexual relationships);
II. Section 7(1) discriminates between Irish citizens who subsequently become the parent(s) of a child versus Irish citizens who are the parents of a child at the time of the child's birth;
III. Insofar as children born in the State to donor assisted human reproduction in similar circumstances to that of the children at issue in the present proceedings, the only differentiating factor is birth outside the State;
IV. The interpretation of the law can also lead to differentiation and unequal treatment within the families (for example, if Ms. X had been the gestational mother for one of her sons and the genetic mother for the other).
175. For its part, the State responds that Article 40.1 does not require equality of treatment for persons who were born in different circumstances and where the parenthood derives from different legal contexts. Identified differences include the place where the child was born (abroad as opposed to in the State), how the child was formed and came into being (DAHR as opposed to traditional), the way his or her parenthood is determined and the citizenship of the persons who are the child's parents at the time of the birth.
176. The general principles governing the application of the guarantee in Article 40.1 that all citizens shall as human persons be held equal before the law as read in the light of the proviso that the State shall have due regard in its enactments to differences of capacity, physical and moral, and of social function, have been recently summarised by O'Malley J. in the course of her judgment in Donnelly v. Minister for Social Protection as follows (at para. 188):
"(i) Article 40.1º provides protection against discrimination that is based on arbitrary, capricious or irrational considerations.
(ii) The burden of proof rests upon the party challenging the constitutionality of a law by reference to Article 40.1º.
(iii) In assessing whether or not a plaintiff has discharged that burden, the court will have regard to the presumption of constitutionality. (iv)
(iv) The court will also have regard to the constitutional separation of powers, and will in particular accord deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy.
(v) Where the discrimination is based upon matters that can be said to be intrinsic to the human sense of self, or where it particularly affects members of a group that is vulnerable to prejudice and stereotyping, the court will assess the legislation with particularly close scrutiny. Conversely, where there is no such impact, a lesser level of examination is required.
(vi) The objectives of a legislative measure, and its rationality (or irrationality) and justification (or lack of justification) may in some cases be apparent on its face. Conversely, in other cases it may be necessary to adduce evidence in support of a party's case."
177. The X family would enjoy recognition of the parent-child relationship in the State from birth if the children had been born in the State after May 2020, just as they are recognised in the law of domicile in Australia, or prospectively from May, 2020. Their circumstances beg the question as to whether the Constitution requires that where provision is made for the acquisition of citizenship by descent based on a parental link with an Irish citizen, then provision must also be made for children born abroad through DAHR who would be entitled to citizenship if parentage were recognised in the State. The conundrum which presents is as to whether it can be said that the children are "like-positioned" given several identified differences between the Irish born child and the child born abroad.
178. It seems to me that the refusal to recognise the legal incidents of the parent-child relationship in like manner with other parents and children is intrinsic to the human sense of self. It also disproportionately affects same-sex couples, a group vulnerable to prejudice and stereotyping, because of their self-evident particular dependence on DAHR. As such, it seems to me that discriminatory treatment of the kind identified in these proceedings warrants close scrutiny in accordance with Donnelly principles.
179. Important context to this close scrutiny is the fact that unlike the situation regarding surrogacy under consideration in A, B & C (A Minor), the Legislature has made provision in Irish law for the recognition of parentage by DAHR. This should mean that the Applicants in the X cases are in a stronger position than those in A, B & C (A Minor). The logic of Article 40.1 of the Constitution being deployed to require the Oireachtas to put the child born abroad through DAHR in the same position as a similarly situated child born in the State is compelling. Nonetheless, Murray J.'s observation in A, B & C (A Minor) that parent-child relationships that derive from Irish statute law differ from those which derive from foreign statute law remains apposite; the difference arising by reason of the legal origin and incidents of that status and the consequent potential for significant divergences between the circumstances in which parenthood can arise in this jurisdiction as compared with other jurisdictions.
180. Murray J. considered a related question to that which arises now in the case of the X family, albeit on an entirely obiter basis in A, B & C (A Minor) when he observed that were Irish law to empower courts to make parental orders of the kind made in England in the case before him (in the surrogacy context) and under the type of conditions provided for in that jurisdiction, significant issues would arise under Article 40.1 of the Constitution were the Oireachtas to deprive the children of parents so decreed of a right of citizenship enjoyed within other families. This is precisely the scenario which arises in this case.
181. Considering such a scenario, hypothetical in A, B & C (A Minor) but real and concrete in the X case that comes before me now, Murray J. posited (at para. 119) that this would effect a differential treatment between seemingly like positioned persons at three levels - between the citizen through whom the citizenship can pass and the citizen through whom it cannot, between the child who benefits from the citizenship and the child who does not, and between the family unit within which that right can be transmitted and that within which it cannot. Murray J. continued by observing that:
"..if there is a justification for such differential treatment, it is not self-evident...."
182. Murray J. added that if such orders were to be enabled under Irish law and citizenship extended by descent within the relationships thus established, the denial of citizenship to children of Irish citizens domiciled in another jurisdiction who have been determined to enjoy parentage under a legal regime like that applicable in the State would also require a clear and rational justification. In this regard also, he noted that it was not immediately obvious what that justification would be.
183. In his separate judgment, Hogan J. also addressed, again on an obiter basis, the constitutionality of s. 7(1) of the 1956 Act by reason of the difference in treatment of a couple, who in the ordinary way, can pass Irish citizenship by descent if one of them are themselves an Irish citizen at the date of birth of their child and the situation of the same-sex couple who are dependent on DAHR in order to have a child. He noted also that special rules have been provided in the case of adoptive parents since the enactment of the Adoption Act, 1952 (current rules regarding adoptions are contained in s. 175(1) of the Adoption Act, 2010), where at least one of them is an Irish citizen, permitting the passing of citizenship by descent.
184. By contrast with the adoptive couple in the ordinary course, Hogan J. referred to the different position of a married couple enjoying parental rights in respect of the child by virtue of an order made by a foreign court (assuming always that such an order would be entitled to recognition here having regard to our rule of private international law) who cannot pass such citizenship by descent, a state of affairs which he posited raised questions in relation to the application of the equality clause in Article 40.1.
185. Referring to judgments in Fleming v. Ireland [2013] IEHC 2 and Donnelly v. Minister for Social Protection [2022] IESC 31, [2022] 2 ILRM 185, Hogan J. sought to stress the respect due to all human persons which he identified as the high moral value at the heart of Article 40.1 of the Constitution. He referred also in this context to two other provisions of the Constitution which he identified as supplementing the Constitutional protection of equality, namely, Articles 9.1.3 and Article 41.4, pointing out that by reiterating the prohibition on sex as a basis for excluding a right to citizenship and by amending the Constitution to allow for same-sex marriage, the People did rather more than simply authorise the Oireachtas to legislate for same-sex marriage. In his view, the Amendment:
"...has to be seen in practice as amounting to an emphatic rejection by the People of this Court's decision in Norris v. Attorney General [1984] IR 36 and, accordingly, read in conjunction with Article 40.1, it reflects a constitutional commitment to homosexual equality at all levels."
186. Hogan J. observed that the reality is that the effect of s. 7 of the 1956 Act in practice is to disadvantage homosexual married couples by treating them less advantageously than their heterosexual counterparts when it comes to passing citizenship by descent to their children. It was his view that the failure of the Oireachtas to allow for citizenship by descent in a case of surrogacy where the Irish citizen's status as a parent of the child is or would be entitled to recognition under the law (including the private international law) of this State raises a constitutional issue having regard to the combined inter-action of Article 9.1.3 and Article 41.4 when read in conjunction with Article 40.1.
187. Undoubtedly, there are obvious legal and factual differences between those born in the State and those born outside the State. The Constitution recognises a fundamental difference between the rights of children born to citizens in Ireland who have a constitutionally protected right (under Articles 2 and 9.2.1.) of the Constitution) and those born abroad who enjoy rights prescribed by statute. The difference here however relates to the source of the right: the Constitution itself or legislation. Similarly, the fact that s.7(1) of the 1956 Act has no application at all to the child born in Ireland is not decisive because separate provision exists for the child born in Ireland. The real question is whether the legislative regime is discriminatory, rather than one particular provision which has application to a category while other provisions apply in respect of different categories. These need to be read together to determine whether the failure to make provision for yet a further category in all material respects the same as those for whom provision has been made is discriminatory.
188. A child born in the State will be subject to a different scheme regarding the registration of birth than is applicable to a child born outside the State, but so are children born abroad by traditional means without this impacting on the conferral of citizenship by descent.
189. Further, a child born abroad may enjoy a right to the citizenship of the country where they are born by reason of the doctrine of jus soli but this arises whether they are born through DAHR or not and does not impede the recognition of parentage using traditional means.
190. Regard must be had to the fact that men and women play different roles in the formation of the new life of a child with the female playing a dual or two-part role through the provision of an egg (genetic) and carrying the child (gestational), whereas the male role is singular in providing sperm. There is no difference in this regard, however, between DAHR resulting in birth in the State where parentage is recognised pursuant to statute and DAHR resulting in birth abroad recognition for which no provision has been made in law.
191. As has been pointed out on behalf of the Respondents, the CFRA was only commenced in May, 2020, after each of the children in the X case were born. The point urged is that at the time of the birth of the children concerned in these proceedings, provision had not yet been made in Irish law for recognition of parentage consequent upon non-traditional DAHR arrangements such that, on the Respondent's case, there is no inequality of treatment. This proposition does not withstand scrutiny in the current context.
192. From an equality perspective, the difference between the children in the X case and a like positioned child born in Ireland to an Irish citizen and therefore entitled to Irish citizenship, is that the children in the X case were born abroad by DAHR. Had they been born abroad by traditional means to an Irish citizen parent, no issue would arise. The fact that birth occurs outside the State is irrelevant where it occurs in the traditional way to parents comprised of an opposite sex couple, without DAHR, so caution is required in determining whether it might be a legitimate basis for different treatment in the case of a child born through DAHR.
193. Recognition of the parent-child relationship from birth through DAHR only exists in Irish law from May, 2020. Accordingly, an Irish born comparator born at the same time as the children in the X case would not have been recognised as a child of the non-genetic DAHR parent at the time of their birth because s. 5 of the CFRA had not yet been commenced. At the time of the birth of the children in the X case, therefore, they were not treated less favourably than an Irish comparator in terms of the recognition of their family status. The matter does not rest there.
194. For the Irish born DAHR child who was born before May, 2020, the recognition issue is resolved by the fact that prospective recognition is now available under Irish law under the CFRA such that their right to citizenship is not impacted by DAHR. The Irish born DAHR child of an Irish citizen parent is entitled to citizenship once recognised as born in the State and as having an Irish citizen parent. The same cannot be said of a DAHR child born to an Irish citizen in identical circumstances abroad.
195. Prospective recognition does not address the significant implications for the child born to an Irish citizen parent abroad through DAHR where s. 7(1) requires parentage from birth to be established. In consequence, the DAHR child born abroad is treated less favourably than their Irish born comparator, as is the child's Irish citizen parent.
196. The fact that birth takes place outside the State is a difference which requires to be considered. It seems to me that from one perspective, this is a very real difference because the State does not regulate the DAHR process in Australia (or anywhere else), in contrast with the position of DAHR carried out in the State. Accordingly, the State does not enjoy control of the circumstances in which a child may be lawfully born through that process abroad. The State does, however, recognise the parent-child relationship of children born in the State through DAHR carried out abroad such that it cannot be concluded that the mere fact that the procedure was carried out abroad is a legitimate impediment to recognition.
197. While a blood relationship underpins the intention of the Oireachtas in prescribing citizenship by descent in terms of s. 7(1) as discussed above, it is clear from s. 11 of the 1956 Act that the absence of consanguinity in the parent-child relationship is not a factor which can be relied upon to explain a difference in treatment as provision has been made in Irish law for the conferral of citizenship on the basis of adoption by an Irish citizen parent.
198. A further differential factor is that the conferral of parentage status varies from country to country. Unlike intercountry adoption procedures which are subject to the Hague Convention and its enforcement mechanism, similar arrangements are not in place in respect of DAHR and significant differences remain between legal systems. Irish law is not a stranger to issues arising from the recognition of foreign status, however, and where provision is not made by statute for recognition, the common law rules of private international law apply such that differences between legal systems does not preclude recognition in the State of personal status deriving under the law of domicile of a person and therefore cannot legitimately be prayed in aid as a justification for a failure to make provision for the conferral of citizenship on the child born abroad using DAHR.
199. Notwithstanding that Irish law now provides for recognition of the parent-child relationship in the DAHR context, special considerations arise in the context of conferral of citizenship by descent given that the applicable recognition principles are broad and permit of only limited scope to justify the denial of a status conferred by the law of a place of foreign domicile. Murray J. observed in A, B & C (A Minor) (at para. 103) that to conclude that by enabling citizenship by descent by law from "parent" to "child", the Oireachtas has thereby precluded itself from denying citizenship by descent to any parent-child relationship recognised by private international law rules on equality grounds, would be to limit the power of the State to regulate the grant of citizenship by descent in the case of Irish citizens domiciled abroad to public policy exceptions available under the rules of private international law.
200. Murray J. further found the proposition that the State might be forced by Article 40.1 to confer citizenship by descent in the surrogacy context unpalatable given that the grant of citizenship is integral to the sovereign power of the State. He was also unhappy with the notion that Article 40.1 might be relied upon to put a parent-child relationship recognised by foreign law in a better position under domestic law than a comparator relationship in the case of an Irish born child. It must be again recalled, however, that in A, B & C (A Minor), Murray J. was confronted with a situation where a parent-child relationship recognised under UK law would enjoy no similar recognition in Ireland if the child were born in Ireland. As he also acknowledged, there is no impediment to the adoption of recognition principles by statute to limit recognition to those parental orders that have an analogue in Irish law (which as he pointed out is what happened in relation to the recognition of foreign adoptions).
201. It bears some emphasis that this is not a situation like that considered in Heneghan v. Minister for Housing, Planning and Local Government [2023] IESC 7, [2023] 3 IR 419 where the Court was asked to overlay Article 40.1 on another provision of the Constitution (Article 18) with the result that the version of the Seanad superimposed would be other than that actually provided for by the express terms of the Constitution itself. Instead, Article 9.2 envisages that the future loss and acquisition of Irish citizenship shall be determined in accordance with law. Reading Article 9.1.3 together with Article 40.1, it is perfectly clear that such provision as is made by law must be on a non-discriminatory basis.
202. It follows that any legislation passed to provide for the exercise of the State's powers to determine an entitlement to citizenship may be amenable to challenge under Article 40.1, just as a legislative lacuna may result in the discriminatory exclusion of some children who differ from others entitled to citizenship only by reason of the fact that they were born abroad using donor assistance. It must be stressed that given that Article 40.1 acknowledges legitimate, legislative classifications, it could not properly be construed as mandating recognition of citizenship by descent to any parent-child relation recognised by private international law. I agree that such a construction would be to abdicate control over an important incident of State sovereignty to the realm of private international law.
203. The effect of a finding that a failure to provide for recognition of such relationships for the purposes of an entitlement to citizenship is a breach of Article 40.1 of the Constitution should not be overstated. It does not equate to a radical curtailment of the State's sovereign power to determine who is entitled to citizenship. Instead, such a finding requires that the State make provision in law for the circumstances in which a child born to a family unit comprising an Irish citizen parent and using DAHR will be recognised. The State remains at large to condition the circumstances in which an entitlement to citizenship by descent is conferred by law for so long as the conditions are permissible under Article 40.1 which, by its terms, envisages that the State is entitled to have due regard to differences of capacity, physical and moral and of social function in its enactments.
204. Where the circumstances of birth are such that it would give rise to a parent-child relationship if it occurred in the State, I cannot see what rational basis there can be for not recognising the incidents of that birth in terms of an entitlement to citizenship in like manner where the DAHR birth occurs outside the State, given that citizenship by descent in the case of birth abroad is provided for in Irish law. None was identified by the State in argument.
205. Moreover, the irrationality and lack of justification complained of in these proceedings is of a kind which is apparent on the face of the legislative scheme when the patchwork of different provisions are read together. It seems to me that it does not require any particular evidence beyond evidence to establish equivalence with persons entitled to recognition under existing provisions for the purpose of demonstrating locus standi to maintain these proceedings.
206. Where the parent-child relationship which results from DAHR is recognised in the State and where both birth to and adoption by an Irish citizen result in the conferral of citizenship by descent under ss. 7 and 11 of the 1956 Act, it follows that a failure to provide for the recognition of the parent-child relationship arising from a DAHR procedure occurring outside the State in like circumstances to that occurring within the State can only be viewed as arbitrary, capricious and irrational. In consequence of the arbitrary failure to make provision for a class of parent and child (which includes Ms. X and her two children), there is a failure to vindicate the constitutional rights of persons such as the Irish citizen parent and children born in the X case.
207. It is not, however, that s. 7 of the 1956 Act is unconstitutional because it is underinclusive but rather that the failure of the State to legislate to fill the lacuna which it is common case exists (and has been established to exist as a matter of law) is a failure on the part of the State to hold citizens equal before the law by providing for entitlement to citizenship in a manner consistent with Article 40.1.
208. As I see it, the concern which arises in these cases relates to alleged discriminatory treatment which flows from a legislative lacuna whereby the State has failed to provide for conferral of citizenship by descent on the basis of a donor assisted parent-child relationship which would be recognised as conferring such a right but for the fact that birth occurred outside the State notwithstanding that the birth occurred in accordance with local law and in a manner which would result in the recognition of a parent-child relationship had it occurred in the State. The frailty lies not with s. 7(1) of the 1956 Act in its own terms which confers citizenship based on consanguinity but with the failure to make positive, further provision for a category of persons currently excluded from an entitlement to citizenship.
209. This lacuna involves consideration of the legislative scheme rather than one specific provision. Recalling the words of O'Donnell C.J. in O'Meara v. Minister for Social Welfare & Ors. [2024] IESC 1 (at para. 22), provisions conferring a benefit are not to be found invalid simply because those benefits were not provided more broadly. To quote Jackson J. in Railway Express Agency v. New York (1949) 336 U.S. 106, also referred to by O'Donnell C.J. in O'Meara (at para. 24), invocation of the equal protection clause "does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact."
210. In O'Meara, the Supreme Court was satisfied not to find s. 124 of the Social Welfare (Consolidation) Act, 2005 (as amended) invalid as this would have meant that, in the absence of a challenge to a payment being made to benefit widows, widowers or surviving civil partners, the beneficial statutory right would have been denied to those people, even though it was no part of the case made that they were not entitled to the payment. Instead, the Supreme Court made an order of certiorari quashing the decision of the Minister to refuse the benefit and a declaration that s. 124 of the 2005 Act was inconsistent with the Constitution insofar as it did not extend to Mr. O'Meara, observing that this was not a complete solution since it would require a legislative amendment to positively provide for benefit in their case but it remained a matter for the Oireachtas to consider how best to make provision for benefit consistent with the provisions of Article 40.1 of the Constitution.
211. I am satisfied that Irish law currently discriminates unconstitutionally between the children of mixed-sex marriages and those of same-sex marriages without any discernible rational basis regarding the conferral of citizenship by descent. Discrimination is also felt by the children born to other non-traditional same-sex relationships when compared with the children of mixed-sex relationships. Discriminatory effects are not limited to the children of mixed marriages or other non-traditional family relationships but also extends to recognised parents whose relationship with their children and family identity is not protected in the law of the State in the way that they would be if the children were born to a mixed marriage or other non-traditional family relationship.
212. Irish law does not afford a properly calibrated or tailored means of vindicating the rights of the Irish citizen and the child of that citizen in the case of the non-genetic, not gestational mother of a child born abroad. Absent further legislative provision, there is a failure to hold all citizens equal before the law through the conferral of citizenship in equal manner on the children of some parent-child relationships in circumstances where no rational basis for distinction with others upon whom citizenship has been conferred can be identified. By so finding, I do not consider any issue to arise in relation to the constitutional separation of powers and in this judgment. I defer entirely to the role of the Oireachtas in relation to legislation dealing with matters of social or moral policy. The Constitution requires only that such provision as is made in law does not result in unequal treatment before the law for persons who are in all material respects the same. While it is a matter for the Oireachtas in determining the appropriate conditions for conferring citizenship rights on children born abroad, where different treatment is provided for, there must a rational basis for such difference in compliance with the requirements of Article 40.1 of the Constitution.
213. In my view, the appropriate remedy in the light of my findings is to grant declaratory relief in terms which declares that the failure on the part of the State to legislate in respect of the conferral of citizenship on the children of an Irish citizen domiciled abroad who may be recognised as a parent in accordance with the rules of private international law results in the unequal treatment of the child and parent before the law without rational basis, results in a failure on the part of the State to vindicate constitutional equality rights in accordance with Article 40.1 of the Constitution.
Personal Rights of Family and Child
214. It cannot be said, nor has it been contended, that the constitutional issues arising on the facts of these cases are confined to Article 40.1 issues, albeit the focus in argument before me was on Article 40.1. In A, B & C (A Minor), the IHREC was given leave to intervene as amicus curiae and in this capacity submitted that by failing to provide for a legislative route to birthright citizenship to a child born following surrogacy whose non-genetic parent is an Irish citizen, the State had breached the rights of the child under Articles 40.1, 40.3, 41 and 42A of the Constitution, even though no constitutional challenge had been brought in those proceedings. Although the issues arise in a different legal context, it seems to me that similar constitutional considerations present from the facts in these cases. Accordingly, I am satisfied that constitutional considerations in this case extend beyond equality rights to embrace constitutionally protected family and personal rights, including the best interests of the child, protected under Articles 40.3, 41 and 42A of the Constitution.
215. As I have concluded that the failure to provide for recognition of the legal parent-child relationship in the State's laws relating to the conferral of citizenship by descent, it may not be strictly necessary for me to proceed further, particularly as submissions made in this regard were limited. I am mindful, however, that if I am found to have erred in the conclusion reached above, it would be better that other issues arising and the subject of argument before me are addressed, even if on an obiter basis. I am particularly concerned that a failure to address the arguments made could potentially result in a remittal following an appeal thereby causing further delay.
216. As observed by O'Donnell C.J. in Adoption of Authority of Ireland v. C & D & A (at para. 15), when addressing legislative inertia and the absence of a comprehensive regulatory regime regarding surrogacy, it is quite clear that relationships of adults and children living together and forming a household gives rise to issues of constitutional law both in relation to their relationship to each other and a right to know one's identity. These comments were addressed to the birth registration system, which is fundamentally important, but it can scarcely be said that the rights affected by birth registration are of an entirely different order to citizenship. Not only are there important legal incidents of citizenship, but citizenship too is core to human identity and to a sense of belonging and attachment to place and people.
217. The decision of the Supreme Court in Gorry v. Minister for Justice [2020] IESC 55 also warrants special note in the context of reliance in this case on Article 41 of the Constitution. In Gorry, protection for the family in its constitution was recognised as extending to embrace aspects of private life and autonomy of non-marital and different family units. As O'Donnell J. observed (at para. 67):
"a basic part of the human personality that is at the core of the protection of the Constitution is the ability to associate with others to form relationships, and particularly close intimate relationships of mutual benefit and support, which, in turn create stable units which provide a benefit to society."
He added that it is not necessary for the exaltation of marriage that other pair-bonding nurturing relationships be humbled, still less ignored. It is clear from the judgment that the rights of the family under Articles 41.1 and 41.2 are not confined to the family based on marriage (which attracts special protection under Article 41.3) and extend to same-sex families such as the X family.
218. Where the State fails to provide a system for recognition, in a rational and fair manner, of the existence of a parent-child relationship and the normal legal incidents of that relationship, particularly in relation to issues vital to the human person and core to identity and a sense of belonging, thereby aligning the protections afforded the family and the personal relationships within the family with the real existence of the familial relationships, then there is a compelling case that there has been a failure to vindicate personal rights safeguarded and deriving from rights protected under Articles 40.3, 41 and 42A of the Constitution. However, none of these rights are absolute. The Constitution imposes a duty to protect and vindicate to the extent "practicable" recognising that less than perfect protection is not unlawful under the Constitution. Furthermore, interference with rights through legislative choices are permissible provided such interference is not disproportionate and is necessary for a legitimate purpose.
219. Undoubtedly, there is considerable complexity in legislating in new and evolving areas of social activity. Complexity may explain delay and might provide some justification for a time-lag in introducing necessary law reform keeping pace with technological and social developments, but inertia cannot justify prolonged, well-signalled failures.
220. A legislative lacuna resulting in an interference with rights becomes increasingly difficult to justify with the passage of time on grounds of complexity alone. The need for legislation addressing the citizenship rights of children born through DAHR abroad to a recognised Irish citizen parent has been clear for some time. The failure to introduce the necessary legislation becomes increasingly objectionable as time passes.
221. I acknowledge, however, that the impact on the children and on the Irish citizen parent in this case is reduced by virtue of their domicile in Australia where their relationship is fully recognised. The children have not been denied a right to enter and reside in Ireland and it is not clear what, if any other practical impact non-recognition of the parent-child relationship may have, beyond the denial of a right to Irish citizenship. Unquestionably, the right to Irish citizenship is a right of fundamental significance and citizenship is core to identity, but the Constitution allows that it is an entitlement which is subject to conferral by law. The X family children cannot assert a constitutional right to Irish citizenship.
222. As it is not clear to me that the absence of a right to Irish citizenship has any bearing on the enjoyment of personal rights and relationships between family members and in how the X family live their lives, and as the Legislature is engaged in a process of providing for recognition of rights in the light of social and technological chances and is playing "catch-up", I am not satisfied that the failure to provide for the recognition of the parent-child relationship in the case of a child of an Irish citizen born through DAHR abroad by the conferral of citizenship on that child in like manner with children born in the State or by traditional means outside the State, falls foul of constitutional duties under Articles 40.3, 41 and 42A.
223. Where it is not clear what day-to-day impact results from a lack of recognition and where legislative changes continue to be introduced incrementally to expand recognition for non-traditional family relationships under Irish law, it seems to me that the case that Irish law is unconstitutional as being in breach of Articles 40.3, 41 or 42A because it has not yet provided for the recognition of the parent-child relationship of the X family and the Irish citizen parent living in Australia is not made out on the evidence at this time. There is nothing on the evidence to suggest that the children, for example, wish to live in Ireland where they are at risk of non-respect of their rights. As the family are not contemplating moving to Ireland, the potential impact of non-recognition for them has not been tested.
224. Something more is required in terms of actual impact or consequence for the X family and in terms of both duration of State failure to provide by law to the extent practicable, before I would be satisfied to find the State in breach its duty to protect and vindicate the rights of the child, the Irish citizen parent and/or the family. I stress, however, that what passes muster on grounds of practicability is not static. The Court's tolerance of legislative delays in providing for recognition of parents and children in a manner which properly respects and vindicates their identity and familial relationships is not infinite. In a different case where evidence of real impact is demonstrated without sufficient justification coupled with ongoing legislative inertia, the balance may well be tipped.
European Convention on Human Rights
225. Since I have decided that the Applicants are entitled to a remedy either on the basis of the correct interpretation of s. 7(1) of the 1956 Act or pursuant to declaratory relief, it is questionable whether it is necessary at all to consider the case made under the Convention. The scheme of the 2003 Act envisages that a remedy under the Act is only available where no other remedy lies. Insofar as the 2003 Act is concerned, the performative obligation provided for in s. 3 of that Act is expressly stated to be subject to any Act of the Oireachtas and, therefore, relief cannot be granted under s. 3 unless it is concluded that no other remedy lies and the Applicants can contend that the Act must be interpreted in accordance with the Convention to allow the Minister to acknowledge citizenship by descent based upon foreign legal parentage simpliciter. That argument was found not to be tenable in A, B & C (A Minor).
226. While the issues are not on all fours in this case, it seems to me that an interpretative obligation under the 2003 Act does not avail the Applicants to any greater extent than the like obligation under the Constitution when regard is had to the jurisprudential position in respect of Convention provisions on this subject and the approach of the European Court of Human Rights in sensitive issues such as those arising here where there remains significant lack of consensus between contracting states warranting that a wide margin of appreciation be afforded as a matter of principle (see, for example, Mennesson v. France, Application no. 65192/11, at para. 79).
227. Where the parent-child relationship is concerned, the Court has found that the margin of appreciation is nonetheless reduced and solutions reached by the legislature are not beyond the scrutiny of the Court. In considering whether a fair balance has been achieved between competing interests, the bests interests of the child are paramount. In S.H. v. Poland (Applications nos. 56846/15 and 56849/15), the Court was confronted with the recognition of a legal parent-child relationship in the context of an entitlement to citizenship. The Court found that Article 8 embraces a person's physical and social identity which includes the legal parent-child relationship, but that Article 8 does not guarantee the right to acquire a particular nationality or citizenship. The Court added (at para. 65) that:
"it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual."
228. In S.H., the European Court of Human Rights found (at para. 75) that as the family resided in Israel and the inability to obtain confirmation of the acquisition of Polish citizenship of one of its parents had not prevented them from enjoying, in the country where they live, their right to respect for their family life, the potential risk to family life was to be regarded in that case as purely speculative and hypothetical and could only possibly materialise if they took up residence in Poland.
229. On a parity of reasoning, it seems to me that it could not be successfully maintained that in circumstances where the families in question continue to reside in countries where parent-child legal relations are fully observed, that a lacuna in Irish law could lead to a finding of breach of Article 8 of the Convention. Indeed, in S.H., the Court found that the complaint did not come within the ambit or ratione materiae of Article 8 of the Convention and consequently a related complaint under Article 14 could not succeed. The Court found (at para. 79) that Article 14 (non-discrimination) has no independent existence and applies only where the facts at issue fall within the ambit of one or more of the substantive provisions of the Convention.
230. In an advisory decision of the Grand Chamber (Request No. P 16-2018-001) on a request from the French Court of Cassation in relation to a requirement under Article 8 of the Convention to register the intending mother as the legal mother following the birth of a child abroad because of a gestational surrogacy arrangement, a not dissimilar approach to that seen in the earlier decision in S.H. was adopted. There, the Strasbourg Court found that the child's right to respect of private life within the meaning of Article 8 requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, legally established abroad as the legal mother but this did not require such recognition to take the form of entry in the register of births of the details of the birth certificate legally established abroad.
231. It was confirmed that another means, such as adoption of the child by the intended mother, may be used provided the procedure laid down by domestic law ensures that it can be implemented promptly and effectively, in accordance with the child's best interests. It seems to me quite likely that the European Court of Human Rights would be satisfied that Irish law, by providing for recognition of foreign parental orders prospectively under Part 2 of the CFRA, discharges positive duties on the State in accordance with the requirements of Article 8 of the Convention absent evidence of a practical effect of non-recognition on the day-to-day lived reality of the family, particularly in light of the lack of consensus as between States on the question of recognition of DAHR.
232. Insofar as a declaration of incompatibility under s. 5(1) of the 2003 Act is sought, even if I were not granting declaratory relief such as to disentitle the Applicants to any further relief under s. 5 of the 2003 Act, it seems to me that an order under s. 5(1) of the 2003 Act would not lie as the Applicants have been unable to identify any decision of the European Court of Human Rights to the effect that the State is obliged to provide for the recognition of foreign parental status orders in its citizenship laws where the affected parties are living in another State and have not encountered any difficulties with regard to respect for their family life in the place where they live consequent upon the lack of recognition complained of.
CONCLUSION
233. I am satisfied that the Minister erred in construing s. 7(1) of the 1956 Act 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. I propose to grant declaratory relief to this effect.
234. I am 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. I also propose to grant declaratory relief to this effect.
235. It is for the Oireachtas as sole and exclusive law maker in the State to determine the form and content of any legislation adopted in accordance with Article 15.2 of the Constitution to cure the identified breach of constitutional rights which flows from the current lacuna in Irish law and to ensure that the State vindicates rights to personal integrity, family life and the best interests of the child to the extent practicable by providing a pathway for the recognition of the real life, personal and familial relationship of the Irish citizen in accordance with Articles 40.1, 40.3, 41 and 42A of the Constitution.
236. I will hear the parties in relation to the form of orders and any consequential matters. The within proceedings will be listed for mention before me in this regard following 14 days from the electronic delivery of this judgment.