A High Court challenge has been brought over the Minister for Foreign Affairs' alleged refusal to decide an Irish passport application made on behalf of a child born via a surrogacy arrangement who is living 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.
The parties cannot be identified for legal reasons.
The couple have been in a civil partnership for many years and their son was born via a surrogacy arrangement in 2015.
Following his birth, the couple obtained a court order in their country of residence confirming them as his legal parents and extinguishing 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 the boy’s parents were informed a number of similar applications had been made regarding children born to surrogates and advice was being sought from the Attorney General. The parents were subsequently informed the Department had intended to refuse the application, but invited them to make further submissions on the issue, which they did.
They were informed in 2018 further clarification from the Minister regarding their application was required. They say they have been awaiting this clarification for some time.
In December 2019, they sent the Minister a final letter saying, unless they received a substantive reply to the 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 the Minister, some 36 months since the original application was made, has yet to decide it.
This delay is unreasonable and a failure by the Minister to carry out his statutory function, they clajim.
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, in their country of residence, the boy is legally recognised as the son of the Irish citizen parent.
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 claim 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.
On Monday, Mr Justice Charles Meenan said he was satisfied, on an ex-parte basis, to grant the applicants permission to bring the challenge and returned the matter to October.