A challenge to the High Court has been brought against the Foreign Secretary’s alleged refusal to rule on an Irish passport application made on behalf of a child born under a surrogacy agreement who lives outside Ireland .
The boy’s parents are a same-sex couple. One of his parents is an Irish citizen but is not his biological parent.
Parties cannot be identified for legal reasons.
The couple have been in a civil partnership for many years and their son was born from a surrogacy in 2015.
Following her birth, the couple obtained a court order in their country of residence confirming them as their legal parents and removing parental rights from the surrogate mother.
In 2017, a request was made to the Foreign Secretary on the boy’s behalf for an Irish passport.
The High Court heard that the boy’s parents were told that a number of similar claims had been made regarding children born to surrogate mothers and that advice was being sought from the attorney general. The parents were then informed that the ministry intended to deny the request, but invited them to provide further comments on the matter, which they did.
They were informed in 2018 that further clarification from the Minister regarding their request was required. They say they have been waiting for this clarification for some time.
In December 2019, they sent the minister a final letter stating that unless they received a substantive response to the passport application, proceedings in the High Court would be initiated. No response was received to this letter.
As a result, the boy and his parents initiated judicial review proceedings forcing the minister to make a decision. Their action is brought for reasons which the Minister, some 36 months after the filing of the initial application, has not yet decided.
This delay is unreasonable and a failure by the minister to fulfill his statutory function, they argue.
The minister, it is also claimed, did not recognize the parent-child relationship between the boy and his Irish citizen parent. The Minister also failed to take due account of the fact that in their country of residence the boy is legally recognized as the son of the Irish citizen parent.
They want the court to order the minister to decide whether to issue a passport to the child and issue an Irish passport to the boy. They claim that the failure to issue a passport to the boy is contrary to the provisions of the European Convention on Human Rights and constitutes a disproportionate interference with his constitutional rights.
On Monday, Judge Charles Meenan said he was satisfied, on an ex parte basis, to grant the petitioners leave to bring the challenge and postponed the case until October.