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High Court

High Court challenge brought over passport for boy born through surrogacy abroad

In 2017 an application was made to the Minister for Foreign Affairs on the boy’s behalf for an Irish passport.

A HIGH COURT challenge has been brought over the Minister for Foreign Affairs alleged refusal to decide on a passport application made on behalf of a young child, born via a surrogacy arrangement, living outside of Ireland.

The passport application was made on behalf of the boy whose parents are a same sex couple.

One of his parents is an Irish citizen, although is not his biological parent. The parties cannot be identified for legal reasons.

The boy’s parents have been in a civil partnership for many years.

Their son was born via a surrogacy arrangement in 2015.

Following his birth the boy’s parents obtained a court order in their country of residence confirming the couple as the boy’s legal parents and extinguished the parental rights of the surrogate.

In 2017 an application was made to the Minister for Foreign Affairs on the boy’s behalf for an Irish passport.

The High Court heard that the boy’s parents were informed that a number of similar applications had been made regarding children born to surrogates and that advice was being sought from the Attorney General.

The parents were subsequently informed that the Department had intended to refuse the application, but invited them to make further submission on the issue, which they did.

The boy and his parents said they were informed in 2018 that further clarification regarding their application was required.

In December 2019, they sent the Minister a final letter pointing out that unless they received a substantive reply to the boy’s passport application, High Court proceedings would be brought.  

No response has been received to that letter.

As a result, the boy and his parents have brought judicial review proceedings compelling the Minister to make a decision.

Their action is brought on grounds including that the Minister has for over 36 months since the original application was made failed to make a determination of their application.

This, it is claimed amounts to an unreasonable delay, and a failure by the Minister to carry out his statutory function.

The Minister, it is also claimed, has failed to recognise the parent-child relationship between the boy and his Irish citizen parent.

The Minister has also failed to take into proper account the fact that in their country of residence the boy is legally recognised as the son of the Irish citizen parent, it is claimed.

They want the court to direct the Minister to make a decision whether to issue the child with a passport and to issue the boy with an Irish passport. 

They also seek declarations including that the failure to issue the boy with a passport is contrary to the provisions of the European Convention on Human Rights and amounts to a disproportionate interference with his constitutional rights.  

The matter came before Justice Charles Meenan today.

The judge said he was satisfied, on an ex-parte basis, to grant the applicant’s permission to bring the challenge.

The judge made the matter returnable to a date in October.

Comments are closed as legal proceedings are ongoing.

Aodhan O Faolain