Supreme Court Surrogacy Ruling Highlights Complex Legal and Policy Issues

This week the Supreme Court ruled that a child born in the UK via a surrogacy arrangement was not entitled to Irish citizenship based on his non-biological father’s Irish citizenship.

The case, in which the Irish Human Rights and Equality Commission (“the Commission”) acted as Amicus Curiae (“friend of the court”),  examined 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 English law which reassigned the parentage of the child to his biological father, B, and his intending parent (known as ‘A’). 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, C. The Irish authorities did not make a decision to grant a passport to the child, but indicated that they did not accept that under Irish law his non-biological parent, A, was his parent at the time of his birth. They contended that the child was therefore not considered to be an Irish citizen pursuant to the Irish Nationality and Citizenship Act 1956 (1956 Act).

The High Court found that the child was entitled to Irish citizenship, however, the State then successfully applied for a leapfrog appeal to the Supreme Court.

In the ruling this week, the Supreme Court upheld the State’s appeal of the decision of the High Court. The Court held that “parent” as referred to in the 1956 Act applied to the genetic father of the child and the birth mother. It was “not without some reluctance” that the Court concluded that C was therefore to be denied the legal status of citizenship. The Court did not make any finding with respect of the constitutionality of the provision or its incompatibility with the ECHR on the basis that, while raised by the Amicus, neither were pleaded in the case.

The Court also referenced the contributions of IHREC, which we provided in our role of Amicus Curiae.

Chief Commissioner Sinéad Gibney said:

“The Supreme Court decision this week highlights the very complex legal and policy issues surrounding surrogacy. As noted during this case, the current law on citizenship dates from a time when surrogacy would have been medically impossible to achieve.

However, we must remember that at the centre of these cases, are individuals and families, who deserve the best protection the State can afford them under the law.”



For further information, please contact:
Sarah Clarkin, IHREC Communications Manager,
01 852 9641 / 087 468 7760
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