Commission Publishes its Legal Submissions on Unregulated Area of Irish Law
29 June 2022 – The Irish Human Rights and Equality Commission (the ‘Commission’) has appeared before the Supreme Court as amicus curiae (‘friend of the court’) in a significant case relating to surrogacy, citizenship and children’s rights.
In its legal arguments to the Supreme Court published today, in the case of A, B and C v. the Minister for Foreign Affairs and Trade, the Commission sets out its view that, under the Constitution, a child born through surrogacy is as entitled as any other child to the recognition and protection of their family relationships. These protections can be seen as an aspect of the child’s dignity, their personal rights and their family rights. In its submissions the Commission, under its examination of existing constitutional and human rights law, urges the Court to consider compelling the recognition of the child’s right to citizenship at birth.
Despite its relative prevalence, surrogacy remains entirely unregulated in Irish law. In its legal submissions to the Court, the Commission has set out that a denial to a child of the citizenship of their parent may adversely affect their life prospects and well-being in a number of ways: including the creation of a two-tier status within the family, whereby some of the family’s children are Irish and thereby EU citizens and the other child is not.
The case examines the citizenship of a child (known as ‘C’) born through surrogacy in the UK in 2015. When the child was born, his surrogate mother and his biological father (known as ‘B’), were recorded on his birth certificate as his parents. A parental order subsequently issued under UK law, which reassigned the parentage of the child to his biological father, B, and his intending parent (known as ‘A’). Any rights of the surrogate mother were effectively extinguished by this order.
In early 2017 the Irish parent, A, applied for an Irish passport for C. The Minister for Foreign Affairs did not take a decision on the application. The Minister indicated that the application would be refused as he did not accept that under Irish law the non-biological parent, A, was the parent of C at the time of his birth, and contended that the child was therefore not considered to be an Irish citizen pursuant to the Irish Nationality and Citizenship Act 1956. No final decision was made and the application remained outstanding until proceedings were commenced in 2020, in order to compel a decision.
The High Court ruled that the child was entitled to Irish citizenship, and directed that the Minister make a decision on the passport application. However, the Minister then successfully applied for a leapfrog appeal to the Supreme Court on the basis that the cases raises matters of public importance.
As amicus curiae, the Commission assisted the Supreme Court by making submissions drawing on national and international law, and the established human rights protections that apply in the area of citizenship rights, having regard to the situation of a child born through surrogacy.
Chief Commissioner Sinéad Gibney said:
“This is an extremely important case, both for the family and child involved and for many other children and parents forced to live in the current legal limbo surrounding surrogacy. The outcome of this case is likely to have a significant impact in other cases, particularly in light of the current legal lacuna in Ireland in the area of surrogacy.”
ENDS/
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Editor’s Note
The legal submission made by the Irish Human Rights and Equality Commission to the Supreme Court in its amicus curiae role is available at the following link:
The amicus curiae function of the Irish Human Rights and Equality Commission
The Commission’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae (friend of the court) before the superior courts in proceedings that involve, or are concerned with, the human rights or equality rights of any person.
Section 10 of the Irish Human Rights and Equality Commission Act sets out the functions of the Commission and Section 10(2)(e) provides that the IHREC shall have a function:
“to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.