The Irish Human Rights and Equality Commission (‘the Commission’) yesterday appeared before the Supreme Court as Amicus Curiae (friend of the court) in joined cases that concern the right to citizenship of children born abroad to same-sex couples of different nationalities.
Over the course of a three-day hearing, the Supreme Court heard that two lesbian couples had conceived babies through a process of shared motherhood IVF. This process involved creating an embryo from an anonymous donor and an egg from one mother and implanting the embryo in the second mother. In both couples, a non-Irish mother gave birth to a baby that had been conceived using an egg from an Irish mother.
Following the birth of the children, their mothers applied to the Minister for Foreign Affairs for Irish passports. The Minister declined to issue passports to the children, saying that the birth mothers did not satisfy the definition of the term ‘parent’ under section 7 of the Irish Nationality and Citizenship Act 1956. Both couples sought to challenge the Minister’s decision by way of judicial review.
In the High Court, Ms. Justice Phelan found in favour of the parents. The Minister appealed the decision by ‘leap frog appeal’ to the Supreme Court.
In November, the Supreme Court granted the Commission leave to appear as Amicus Curiae in the joined cases, known as X and Y.
The Commission assisted the Court with written and oral submissions on the human rights and equality issues arising. In particular, the Commission said that in failing to provide for a legislative pathway to pass citizenship by descent to the children in these cases, the State had breached the equality provision under Article 40.1 of the Constitution.
At the conclusion of the three-day hearing, the Court reserved its judgment, which is expected in the New Year.
Chief Commissioner Liam Herrick said:
“We were grateful for the opportunity to assist the Court in these joined matters, which raise profound questions about how citizenship by descent is passed to children born abroad through shared motherhood IVF. We look forward to the Court’s judgment in due course.”