Micheál Martin (Cork South Central, Fianna Fail)
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I reluctantly raise this issue on the floor of the House because of the inability and failure of parents of a beautiful baby daughter who was born to them last September with the help of a surrogate mother in India to get a passport from the Department of Foreign Affairs. There are other children in this situation as well. It is my strong view that there is nothing to stop the Department of Foreign Affairs or the Minister for Foreign Affairs from issuing a passport to that child and to other children born through surrogacy. It is noticeable that when this child was born in India, the Irish embassy in Delhi referred to the child's citizenship as Irish on the emergency travel document. There is no reason that should not continue.

The key issue in determining the issuing of passports - Mr. Nugent, an official in the Department of Foreign Affairs, pointed out this in correspondence - is whether the child is an Irish citizen and whether the requisite consents of the guardians have been given. On the question of citizenship, the Department of Foreign Affairs says - I know this from having been a Minister for Foreign Affairs and there is precedent for this - that one may be able to establish that the child is an Irish citizen by providing satisfactory DNA evidence. In this case and in other cases, very strong and cast iron DNA validation has been provided. The parents have secured the DNA evidence from the Blackrock Clinic in Dublin, verified by St. Bartholomew's Hospital in London, and they have gone public on this and this is a matter of public record.

The Department of Foreign Affairs says in regard to guardianship that the Minister shall, before issuing a passport to a child, be satisfied on reasonable grounds that each person who is a guardian of the child consents to the issuing of a passport to the child. The consent by the mother to the issuing of a passport was full, free and informed in this case. The parents have signed the notarised affidavits from the birth mother to that effect.

Despite all of that, the passport has been refused and I know the Minister is aware of this situation. I would have been aware of another situation when I was Minister where I gave instructions to the officials to issue a passport and I received assurances earlier that a passport would be issued in that case. Subsequently, it was brought to my attention that a passport has not been issued. I had another meeting with officials and was told that the Attorney General had issues with the matter and referred to issues that had emerged from the commission on assisted human reproduction. I do not think that the issuing of passports should be used as a vehicle either to surface, or become a catalyst for dealing with, issues that came out of the commission on assisted human reproduction, which are complex and which the Oireachtas had before it in the context of an all-party committee and which it did not progress.

There is nothing in any of the correspondence I have seen or the responses I have received - I have written to the Minister on this - that cites any law preventing the Minister from issuing a passport and using his discretion to issue a passport to the child. This is important to the fundamental rights of the child in terms of the right of the child to travel, to access medical treatment and to take away the worries and concerns that parents have. In some cases because of work and other issues, people have to travel to other countries from Ireland and back again.

I am disappointed with the responses I have received so far. I have great respect for the officials of the Department of Foreign Affairs, having worked there, but I find the obduracy in regard to this issue perplexing and difficult. I know there is precedent for issuing passports on the provision of DNA evidence. That is a fact. I cannot understand why that cannot be invoked in regard to these cases.

Eamon Gilmore (Dún Laoghaire, Labour)
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I was not aware that the Deputy was going to raise a specific case. The note I have is that he was to ask me whether passports or travel documents can issue to children born outside Ireland when the parentage is proved to be Irish and, if not, whether the Government plans to bring forward urgent legislation to allow him to do so. It is to that general question to which I have prepared a response but I am aware of the case that the Deputy has raised with me and I am happy to address it directly. I hope he will allow for the fact that I am doing so with the use of-----

Micheál Martin (Cork South Central, Fianna Fail)
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It is on the general issue of surrogacy and the issuing of passports.

Eamon Gilmore (Dún Laoghaire, Labour)
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-----a prepared script. I am familiar with the case to which Deputy Martin referred because he raised it with me in correspondence and I have also met the parents of the child concerned. It is a case for which I have considerable sympathy and I have made extensive inquiries about it within my Department.

The Deputy stated that he is not aware of anything that would prevent me from issuing a passport, but this is not the case. A decision of the Circuit Court on 8 June refused the application for a declaration of parentage in respect of the child. In these circumstances, the legal position of the child's parentage and thus entitlement to citizenship has not been established and therefore I cannot issue the child with a passport. I investigated the possibility of issuing an emergency travel certificate to the child, but I am advised on the basis of the information available that there is no legal basis for me to do so.

I understand the parents are unhappy with the situation, but given that the Circuit Court has issued a determination, no administrative procedure is available to me to overrule it. I am advised that the position can only change on foot of an appeal to the High Court to overturn the decision of the Circuit Court. The State will be co-operative in regard to the processing of any appeal to the High Court. The Attorney General will not oppose an appeal regarding the declaration of parentage and the State will not seek costs in respect of any application made. The State is also willing to co-operate on the processing of an appeal to the High Court if the parents' solicitor contacts the Office of the Chief State Solicitor. In one recent case which was taken to the High Court, a passport was issued within 24 hours of the court's decision being made.

The difficulty in this case is that we cannot ignore the decision of the Circuit Court and I cannot issue a direction to overrule it administratively. However, we will provide every co-operation in expediting an appeal to the High Court.

Micheál Martin (Cork South Central, Fianna Fail)
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The parents have advised me that the Circuit Court refused to hear the case on 8 June, stating it should be heard in the High Court. There have been previous examples of refusals or reluctance to grant passport applications. I dealt with one such case, although unfortunately I resigned for political reasons shortly after I issued an instruction on it. I was told the Attorney General's office had concerns about this issue. Something is happening in the undergrowth that I do not understand. I hope I am not doing anyone a wrong but I just do not get it.

The DNA is absolute. We should not expect parents to incur all the costs associated with High Court cases simply to assert their rights. We issue passports in circumstance which do not approximate the rights to citizenship this child enjoys by reason of the DNA. As a political system, we should not be making parents look to the High Court to provide passports for their children if the DNA is cast iron guaranteed. We need to exercise discretion and pragmatic common sense.

Even before the Circuit Court issued its decision, there was a resistance to issuing passports. The original reasons given for this resistance was that the surrogacy laws and the recommendations of the commission on assisted human reproduction needed to be addressed. These are complex issues which must be debated in this House but parents and their children will be waiting several years before they are resolved. Meanwhile, the children are without passports or citizenship.

I do not think anyone would challenge the Tánaiste if he exercised his discretion to issue a passport. I ask him to consider the matter carefully.

Eamon Gilmore (Dún Laoghaire, Labour)
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Deputy Martin is incorrect to state that the Circuit Court refused to hear the case. The Circuit Court issued a ruling which refused the application for parentage. This ruling can only be dealt with in the High Court, which makes it impossible for me to exercise discretion, as the Deputy will understand.

Micheál Martin (Cork South Central, Fianna Fail)
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The parents did not go to court for a passport.

Eamon Gilmore (Dún Laoghaire, Labour)
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For a passport, there has to be satisfaction-----

Micheál Martin (Cork South Central, Fianna Fail)
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Reasonable grounds.

Eamon Gilmore (Dún Laoghaire, Labour)
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The court has made a decision. We have made it clear that an appeal to the High Court will not be opposed. We will not seek costs and full co-operation will be offered. In any event, the issuance of a passport will not address the question of legal guardianship, which is necessary for granting consent to medical treatment.

The Deputy is correct that wider issues arise in regard to surrogacy and the issuing of passports. New legislation is required in the area of surrogacy and it is the Government's intention to bring forward legislation. That will take time, however, and in the interim, my Department, the Attorney General's office, the Departments of Justice and Equality and the Department of Children and Youth Affairs are at an advanced stage in preparing guidelines on how cases of surrogacy should be dealt with.

I do not have time to discuss all the issues that arise in this complex legal area. I could spend a considerable amount of time outlining existing legislation on guardianship and what happens in surrogacy cases. Irish law makes various presumptions about parentage and guardianship.

In the individual case to which Deputy Martin referred, a solution has been identified and we will co-operate in solving the problem. We cannot ignore the decision of the Circuit Court but we are addressing the wider issue by preparing guidelines to streamline the issuing of passports and other decisions on guardianship of children.