Supreme Court to decide citizenship for children born abroad to same-sex couples

The Irish Supreme Court is set to decide in 2026 whether children born abroad to same-sex couples can claim Irish citizenship by descent when their families used donor-assisted human reproduction. The appeal, heard over three days in December 2025, could reshape how Irish law treats the word “parent” for passport and nationality purposes. Two families, in cases known as X and Y, say their children were denied Irish passports even though one parent is an Irish citizen. The State appealed after the High Court sided with the families in April 2025. A ruling may affect Irish families living overseas for work.

The legal provision at issue

At the center is section 7(1) of the Irish Nationality and Citizenship Act 1956, which grants citizenship to a child born outside Ireland to an Irish citizen “parent.”

• In case X, the Irish citizen was neither the gestational mother nor the biological father because the couple used shared motherhood IVF.
• In case Y, the biological or genetic mother is the Irish citizen.

Lawyers for the families argue that modern family building should not strip a child of nationality, while State lawyers say the court must apply the statute as written. The passport refusals left children without Irish papers or status.

High Court judgment and “legislative lacuna”

In April 2025, the High Court, led by Ms Justice Siobhán Phelan, found for the parents and said the law contained a “legislative lacuna” — a gap that lawmakers had not filled.

• Her judgment pointed to the rapid change in donor-assisted human reproduction and to the legal steps Irish couples take abroad to have children.
• Phelan indicated that the Oireachtas would need to act if the law is to reflect today’s realities.

The State appealed, sending the matter to the Supreme Court for a final interpretation. Until then, families say decisions depend on biology rather than parenthood alone.

Supreme Court hearing and timeline

The Supreme Court heard the appeal over three days in December 2025 and reserved judgment at the end of the hearing.

• The court has not set a publication date, but the ruling is expected sometime in 2026.
• For families waiting on passports, that timing matters because travel, school registration, and access to consular help can hinge on a child’s nationality papers.

These cases have drawn attention beyond Ireland because many citizens live abroad, form families there, and then seek to pass on Irish citizenship by descent when they return or relocate.

Role of IHREC and equality concerns

The Irish Human Rights and Equality Commission (IHREC) entered the case as amicus curiae (friend of the court) to give written and oral submissions on equality and human rights.

• IHREC argues that, by failing to provide a clear route for citizenship by descent in these situations, the State has breached Article 40.1 of the Irish Constitution, which requires equal treatment.
• Liam Herrick, IHREC’s chief commissioner, said the disputes raise “profound questions” about how citizenship is passed to children born abroad through shared-motherhood IVF.
• He warned that children can face years of uncertainty while adults debate definitions.

“The cases raise profound questions,” Herrick said, emphasising that equal treatment is not only a matter for adults.

How citizenship by descent works and the DAHR gap

Under Irish law, “citizenship by descent” often means a person born outside the State becomes Irish at birth if a parent is an Irish citizen. However, the Act does not spell out how to treat parenthood where conception involves donors and medical clinics.

• Donor-assisted human reproduction (DAHR) can involve donated sperm or eggs.
• It can also involve a non-gestational parent who is still a legal parent under the law of the country where the child is born.

The families say the passport refusals treat their children as strangers to Ireland, which they argue is unfair to the children.

Practical impacts on families

Officials have not released full details of the families because the cases are anonymised, but the dispute turns on Irish passports, the main proof of nationality in daily life.

• Parents say they have had to plan travel around visa rules of other countries, even when one parent is Irish.
• The Department of Foreign Affairs sets out the State’s passport rules and guidance for children born abroad on its official site, including passport applications, at Ireland’s Passports Online.

Any change ordered by the court would likely feed into those administrative decisions. For some families, delays can affect access to consular help.

Wider context and competing arguments

Immigration lawyers say the case exposes tension between older laws and newer ways of forming families, especially for same-sex couples who rely on fertility treatment abroad.

• Analysis by VisaVerge.com suggests citizenship disputes tied to assisted reproduction are rising across Europe as more parents move between countries for work and healthcare.
• In Ireland, campaigners argue the promise of equality after the 2015 marriage referendum rings hollow if children cannot share a parent’s nationality.

State lawyers counter that courts should not rewrite legislation and that any wider fix belongs in parliament. The justices must decide what “parent” means in the context of the 1956 Act.

Possible outcomes and consequences

Because the appeal asks the court to read a single word in a 1956 law, the judgment could have effects beyond the two children at issue.

• If the Supreme Court backs the High Court, lawmakers may feel pressure to close the gap identified by Phelan.
• If it overturns the High Court, families may push the Oireachtas to amend the Act so that parenthood in DAHR is recognised for nationality purposes, not just for family law.

Either way, Irish citizens abroad will be watching, since passport refusals can split families between countries and legal systems. For parents, the wait has been long.

Human element and interim position

One parent in the litigation told the court through their lawyers that they never expected their child’s citizenship to turn on who carried the pregnancy or whose genes were used.

• The record of the hearing remains with the court while it writes its decision.
• Herrick said IHREC’s role was to remind judges that equal treatment is not only a matter for adults.

Until the ruling, families in similar situations can only apply under current passport practice and hope officials accept their documents. For now, children’s status often depends on where they’re born.