About this case:

• Citation:
  [2023] IESC 10
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Brian Murray

Delivering judgment in the case, Mr Justice Brian Murray held that the parental order was capable of recognition in Ireland but this did not mean that every reference to “parent” in Irish law applied to the present case. It was held that the child was only entitled to derive citizenship where, at the time of their birth, their non-biological parent was legally their parent and an Irish citizen.

Background

A and B were a married male couple. B was a British citizen, while A was an Irish citizen from birth. They had been married since 2012. Their child, C, was born in April 2015 via surrogacy using sperm from B. The surrogate, D, and B were recorded on the birth certificate as the C’s parents.

In July 2015, A and B successfully obtained a parental order for C pursuant to English law. The law applied to those in a same-sex relationships. The effect of the parental order was to reassign parentage from the surrogate to A.

In 2017, A and B applied to the Minister for Foreign Affairs and Trade for a passport for C based on A’s citizenship. It was contended that section 7(1) of the Irish Nationality and Citizenship Act 1956 applied in the case, which stated: “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.”

The core claim was that, as A was Irish and the parent of C, the child was entitled to Irish citizenship. The Minister argued that the reference to “parent” meant the genetic father or mother of a child. It was said that in order for citizenship to pass by descent, a person must be both 1) a citizen and 2) the child’s parent at the time of the child’s birth.

The applicants were successful in the High Court, where it was held that C was entitled to an Irish passport. The Minister appealed the decision and was granted a leapfrog appeal to the Supreme Court.

In addition to the core claim as to the proper meaning of section 7(1) of the 1956 Act, the court also engaged with the question of the recognition of the English parental order and the double-construction rule.

Supreme Court

Mr Justice Murray began by outlining the legislative history regarding citizenship provisions in Irish law, as well as the current law relating to the Child and Family Relationships Act 2015. The 2015 Act provided for donor-assisted human reproduction and allowed for retrospective recognition of parentage in limited circumstances.

As a preliminary point, the court held that it was important to consider the recognition of the parental order. It was held that such an order was capable of recognition by the private international law of Ireland despite no provision for such orders in Irish law (see In re Valentine’s Settlement [1965] Ch. 831; HAH v. SAA and ors [2017] IESC 40). However, this did not mean that A and B were “parents” in every legislative context under Irish law and each statute had to be interpreted by reference to language, context and objective (see Heather Hill Management Company CLG and anor. v. An Bord Pleanála [2022] IESC 43).

Having considered the contextual background to section 7(1) of the 1956 Act, it was held that the term “parent” referred to the genetic father of the child and included the birth mother. It was noted that the 1956 Act was enacted prior to the advancement of medical science and in vitro fertilisation. As such, since A was not the genetic father of C, he did not qualify as a parent under section 7(1).

It was held that the plain meaning of the 1956 Act applied only to genetic parents and there was nothing in subsequent amendments which suggested that the Oireachtas intended to change that.

The court held that it was not possible to construe section 7(1) to render A as C’s parent for the purpose of the provision. The court held that, if the applicant’s interpretation were correct, then the court would be radically altering the legislative scheme (McDonald v. Bord na gCon (No.2) [1965] IR 217; East Donegal Co-operative Ltd v. The Attorney General [1970] IR 317; Defender Ltd. v. HSBC France and ors. [2020] IESC 37; Foy v. An tArdChláraitheoir [2007] IEHC 470 applied).

In light of this finding, the court held that there was significant difficulty in applying the double-construction rule for which the applicants contended. The court held that the legislation was designed to allow citizenship to pass by descent through persons who were parents at the time of the birth of the child. The interpretation sought by the applicants did not sit comfortably with the language used in section 7(1), the court said.

The court also held that it was not consider striking down the provisions of section 7(1) as contrary to the Constitution as such relief was not sought in the proceedings. The issue was not argued before the High Court.

Further, the court held that it would not grant a declaratory order (suggested by the amicus curiae) that the State had breached C’s constitutional rights by failing to provide a legislative rout to birth right citizenship following surrogacy. In order to consider such relief, the court would have to join the appropriate State parties and allow the State to adduce evidence. This could not be done at the instigation of a notice party at this point in the proceedings, the court said.

Conclusion

The court held that it was “not without some reluctance” that it concluded that C was denied an important legal status in the circumstances of the case. However, the court observed that if Irish courts could make parental orders such as the English courts, “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”.

The appeal was allowed and A was held to not be C’s parent for the purpose of section 7(1) of the 1956 Act.

A and Ors. v. The Minister for Foreign Affairs and Trade [2023] IESC 10