Family Law

Ireland’s Antiquated Definition Of 'Parent' Means Denying Citizenship To Children of Same-Sex Couples

Let’s hope we can toast to these children and their Irish passports over a pint of Guinness soon.

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The miracle of assisted reproductive technology (ART) has allowed people in the LGBTQ community to have options when it comes to growing their family.  For instance, same-sex male couples can turn to an egg donor and gestational carrier to have a genetically-linked child. Female couples can simply turn to a sperm donor to conceive. And people outside of the traditional male-female gender binary may have all sorts of options.

Some couples, like Katie Gallagher and her wife, Holly Groombridge, go a more complicated route.  First, Gallagher, an Irish citizen, went through the invasive process of having her eggs retrieved.  They used a donor’s sperm to fertilize those eggs.  And then they transferred the fertilized embryos to Groombridge’s uterus, in order to carry the child to birth.  Nine months later, their baby boy Griffin was born.

Bad Luck of the Irish. After the birth, Gallagher hoped to take Griffin home to Ireland to visit her family.  As part of the process, she applied for an Irish passport for her son. But Gallagher was surprised to receive a denial of her request because she was neither the “mother,” nor the “father” of Griffin, as required by Ireland’s law.

Gallagher was told that because her spouse had given birth to Griffin, the spouse was the child’s true “mother.” Gallagher lacked the correct gender to be considered a “father” under Irish law, and so the Irish government (or at least the passport agent in charge of her application) determined that Griffin was not eligible to receive an Irish passport. The fact that Gallagher is the genetic mother of Griffin, and that Gallagher is on Griffin’s birth certificate, just weren’t enough.

In Bad Company. Unfortunately, this is not an isolated case. Griffin has company when it comes to children of Irish-UK same-sex parents being denied an Irish passport. Catherine and Hannah Brancaleone-Phelane are a married couple with two daughters. Catherine, an Irish citizen, gave birth to their daughter, Kathleen, while her British wife, Hannah, gave birth to their daughter, Rilee. The couple used the same donor for their daughters, making them half-siblings, genetically-speaking. While they had no problems obtaining an Irish passport for Kathleen, Rilee has been denied an Irish passport. Just like in Griffin’s case, the Irish government argues that Rilee doesn’t have an Irish mother or father.

Inferior Passport? In good news, at least neither child is stateless. The UK is keeping calm and carrying on in the world of ART developments. Its definition of “parent” is broader than Ireland’s, and it has no problem recognizing the children of either Gallagher or Brancaleone-Phelane as citizens of the UK. The children are subjects of the Crown. Of course, with Brexit in progress, that is arguably the inferior of the two passports.

It’s Not A Marriage Problem. Notably, same-sex marriage has been legal in Ireland since November 2015. So, it’s disappointing that a country can recognize the right of a same-sex couple to marry, but deny that couple the natural rights to parenthood that heterosexual couples enjoy.

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Just as we saw from the case of twin brothers who can’t both be US citizens, Ireland is one of many countries struggling with how to recognize parent-child relationships with new forms of families.

Help Is On The Way. Hopefully. I spoke with Irish solicitor Fiona Duffy about these cases. Duffy explained that there was an amendment in the 2015 Marriage Act that changed relevant definitions from the gender specific “husband” to the neutral term “spouse” that would likely remedy these types of cases.

However, that amendment has not yet been made fully effective by the legislature. Duffy noted that there was also a lengthy and comprehensive scheme proposed by the government to address human assisted reproductive technology, including surrogacy, currently under serious consideration.  She says that the commencement of the new scheme could likely solve the situation faced by couples like Gallagher and Brancaleone-Phelane.

So let’s hope we can toast to these children and their Irish passports over a pint of Guinness soon.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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