Commission to Appear as Amicus Curiae in Case
The Irish Human Rights and Equality Commission (‘the Commission’) has been granted liberty by the Supreme Court to exercise its amicus curiae (‘friend of the court’) function in a significant case relating to surrogacy, citizenship and children’s rights.
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 was 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. The child’s birth certificate was then reissued to reflect his reassigned parentage to both his fathers.
In early 2017 the Irish parent A, applied for an Irish passport for his son. The Irish authorities did not make a decision to grant a passport to the child, as they did not accept that under Irish law his non-biological parent, A, was his parent 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 by the applicants in 2020.
The High Court found that the child was entitled to Irish citizenship, and directed that the Minister make a decision on the passport application. However, the State then successfully applied for a leapfrog appeal to the Supreme Court on the basis that the cases raises matters of public importance.
The Supreme Court will now consider this important case. It is anticipated that the Court will consider the question of entitlement to citizenship by descent in the context of international surrogacy, along with a number of related issues having regard to Irish law and the European Convention on Human Rights.
As amicus curiae, the Commission will assist 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.
Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission stated:
“The Commission applied to appear as amicus curiae in this case as it raises important issues on the protection of the rights of citizenship in surrogacy cases. The determination of the State’s appeal is likely to have a significant impact in other future cases.”
ENDS/
For further information, please contact:
Brian Dawson, IHREC Communications Manager,
087 0697095 bdawson@ihrec.ie
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Editor’s Note
As the Irish Human Rights and Equality Commission is now formally involved in the proceedings, we are precluded from making any further comment as the matter is before the Supreme Court.
Where written submissions are made by the Irish Human Rights and Equality Commission to the superior Courts in amicus curiae cases they will be made available on www.ihrec.ie after the case has been heard.
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.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.