When an Irish woman living in Australia applied for Irish passports for her two sons in 2017, she thought it would be a straightforward administrative exercise.
It was “beyond insulting”, she says, to be told her boys, conceived via in-vitro fertilisation (IVF) and carried by her partner, would be denied passports because the Department of Foreign Affairs did not recognise her as being their “mother” or “parent”, meaning they could not claim citizenship by descent.
The woman is not their biological mother but is recognised as their legal parent under Australian law and named as their parent on their birth certificates.
Earlier this month, the High Court declared she, her children and her family were treated unequally because the Government has failed to provide a way for the boys to achieve Irish citizenship. This “unequal treatment” without rational basis amounts to a failure by the State to vindicate their constitutional rights.
After an eight-year campaign, Ms X, as she is described in the judgment, says she feels “delighted” and “vindicated” by the victory. She is hopeful the State, which fought the case, will move quickly to address the “lacuna” in the law that primarily affects gay parents living overseas.
The result is a “double-edged sword”, she suggests, however, as she reconciles with the court’s confirmation of what she always suspected.
“It is the country you have always been proud to be a citizen of. It is upsetting when that same country is found to have treated your children unequally. It does gut you,” she says.
Ms X’s legal action was one of two determined recently by Ms Justice Siobhán Phelan. In both cases, the children concerned had two legal mothers and had been born abroad following donor-assisted human reproduction procedures.
The minister for foreign affairs refused passports for the children because the Irish citizen parent was not the gestational mother, biological father or adoptive parent.
Therefore, they do not meet the definition of “parent” for the purpose of section 7 of the 1956 Irish Nationality and Citizenship Act, from which citizenship by descent can be derived.
In the other case, a passport was refused for a Spanish-born child, despite the Irish citizen being the genetic mother, having donated her egg to her partner. Ms Justice Phelan found the minister erred in interpreting section 7 as excluding this child’s genetic mother.
She also held that Irish law does not afford a properly tailored means of vindicating the rights of a child born abroad to a non-genetic, non-gestational Irish citizen mother.
Ms X says, this is a “fairly significant decision” representing “quite the rebuke” of Ireland’s approach to same-sex parent arrangements.
“You do feel vindicated. As soon as you got the knock back, you knew in your stomach this was wrong,” she says.
Ms X says she is “extremely disappointed” her homeland would not recognise her as a parent.
“To be told you are not a parent of your own child is a very hard thing to have to listen to, to be frank,” she says.
Australia has given gay couples a plethora of parenting rights, but was two years behind Ireland in achieving marriage equality. It was surprising to her that her native country, which so publicly voted for marriage equality in 2015, is behind on same-sex parental rights.
She cannot understand the “ridiculous” quirk of the Irish legislation that would allow her children to get Irish passports if she were their adoptive parent.
“If I adopted a child in Australia ... and then I send the adoption papers off to Ireland, then I am a parent by law,” she says. She cannot adopt her own children, on whose birth certificates she is named.
She says the only explanation for this “lunacy” is the one found by the High Court: a lacuna in the law. It has been pointed out to the Government for years, she says, but “for reasons unknown” to her, the gap has not yet been filled.
“There just seems to be some failure to just do it. I really don’t understand what is behind it. If you are going to grant marriage equality, you must expect gay people are going to have their own children,” she says.
Ms X says there are many other same-sex parents who are facing similar barriers to parental recognition in Ireland, but not everyone has the time, money or inclination to do battle in the High Court.
She is grateful for the support she has received from people in Ireland and to her legal team, Conor Power SC, William McLoughlin BL and Gibson & Associates solicitors, who took on her case on a pro bono basis. She says she could not have pursued the action if her lawyers were not willing to take a financial risk to help improve the law.
As a lawyer herself, Ms X says her sense of comfort is curbed by the potential for the State to appeal the ruling. She suspects the constitutional issues will end up being determined by the Supreme Court, which could add another 18 months to her family’s legal journey.
“I don’t know if this fight is over yet, but we are giving it a red hot go ... We have just got to keep going. It is a matter of principle now and it is also important to so many people.”
In response to queries, a Department of Foreign Affairs spokeswoman said it is reviewing the judgment with officials in other relevant departments and is “considering its implications for passport applicants”.
Ms X’s children are now in their teens and she wants them to benefit from dual citizenship as she does, and to be “proud of their Irish heritage and their Irish culture, which I have instilled in them”.
Irish passports are “important for their identity”, she says. “When you get the little passport come through you are part of the club.”
Getting the documents should not require a court fight, but should be a “matter of course”, she says.
“All you want is a little passport for your own kids. I’m not asking for much. I’m asking for my children to be recognised as my children. It is not a big deal. It should not be a big deal.”
