Rights watchdog to appear in Supreme Court case concerning surrogacy

Rights watchdog to appear in Supreme Court case concerning surrogacy

Sinéad Gibney

The Irish Human Rights and Equality Commission has been granted liberty by the Supreme Court to exercise its amicus curiae 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 the 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 Irish Human Rights and Equality 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.

Chief commissioner Sinéad Gibney said: “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.”

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