Ms Tracy O'Keeffe:

I would like to thank the Cathaoirleach and the members of the committee for inviting the Department of Justice to discuss issues relating to citizenship arising from international surrogacy arrangements. I am a principal officer in the civil justice legislation function of the Department of Justice. I am joined by Mr. Andrew Munro, assistant secretary, who has responsibility for civil justice policy and legislation.

Entitlement to Irish citizenship is governed by the Irish Nationality and Citizenship Act 1956. Section 7 of the Act, which makes provision for Irish citizenship by descent, is applicable to children born outside Ireland through international surrogacy arrangements. Section 7(1) provides that a person is an Irish citizen from birth if at the time of his or her birth either parent was an Irish citizen or would if alive have been an Irish citizen. Section 7(3) provides that subsection (1) shall not confer Irish citizenship on a person born outside the island of Ireland whose Irish citizen parent was also born outside the island of Ireland, unless the person’s birth is registered in the foreign births register, kept by the Department of Foreign Affairs under section 27 of the Act. This requirement does not apply where the Irish citizen parent was abroad in the public service at the time of the person’s birth. Where a person’s birth is registered in the foreign births register, the person’s Irish citizenship is effective from the date of registration, not from the date when the person was born.

Section 11 of the 1956 Act provides for citizenship of children adopted by Irish citizens, with effect from the date an adoption order is made or the date on which an intercountry adoption effected outside the State is recognised under the Adoption Act 2010.

In 2012, a guidance document was published on citizenship, parentage, guardianship and travel documents issues in relation to children born outside the State as a result of surrogacy arrangements. The guidance document was agreed by an interdepartmental group on surrogacy, comprising the Departments of Justice, Health, Children, Foreign Affairs, and Social Protection, and the Office of the Attorney General. The guidance document provides information to people who intend to enter surrogacy arrangements outside the State on the practical and legal considerations arising under Irish law where the intending parents intend to bring the child to live with them in the State. The guidance document gives information on how legal parentage is established, how citizenship may be established, the information required for travel documents to issue for the child and the undertakings required to be given by the intending parents before travel documents are issued.

Under Irish law, the genetic father of a child born through surrogacy may apply for a declaration of parentage in respect of the child under the Status of Children Act 1987. If the declaration of parentage is granted, the father will apply for guardianship under section 6A of the Guardianship of Infants Act 1964. An Irish citizen genetic father will also, in most cases, apply for an order under section 14(3) of the Passports Act 2008, directing that the Minister for Foreign Affairs may issue passports to the child without the consent of the birth mother until the child reaches the age of 18 years.

The Department of Justice is aware that issues regarding entitlement to Irish citizenship have arisen in relation to children born outside the State through surrogacy or donor-assisted human reproduction, where the Irish citizen intending parent is neither the birth mother nor the genetic father of the child.

There are some judicial review applications before the courts at present arising from passport applications made for children born outside the State through surrogacy or donor-assisted human reproduction and which involve issues relating to entitlement to Irish citizenship by descent under section 7 of the Irish Nationality and Citizenship Act 1956. The Supreme Court has recently determined that it will hear a leapfrog appeal on the question of the interpretation of section 7(1) of the 1956 Act in relation to entitlement to citizenship by descent in the context of surrogacy. This issue arose in the High Court case of A, B and C v. Minister for Foreign Affairs and Trade. As these matters are currently before the courts, it would be inappropriate for the Department to comment further on them at this time.

I am happy to answer any questions the committee may have.