Irish couple in Ukraine for birth of son by surrogacy challenge quarantine rules

High Court grants permission  to challenge direction from Government that airlines must not let them board a flight unless they have pre-booked a quarantine hotel

A member of the defence forces escorts a passenger from Terminal 2 arrivals hall at Dublin Airport as the State's mandatory quarantine system was extended on Thursday to include the US, Belgium, France and Italy. Picture: Brian Lawless/PA

The High Court has granted permission to an Irish couple to challenge the direction from the Government that airlines must not let them board a flight from Ukraine unless they have pre-booked a quarantine hotel.

The couple, who went to Ukraine 10 days ago for the birth of their son by surrogacy, claim failure to meet the pre-book requirement, especially in circumstances where there are no rooms available, is a breach of their constitutional and European Convention rights.

They say there is no power to direct airlines to accept passengers without pre-booking and want an order quashing the designation of Ukraine on the banned list of countries.

They want a declaration their rights have been breached by a failure of the State guarantee their return passage to Ireland.

They also say the blanket imposition of a requirement to book a quarantine hotel, regardless of their individual circumstances, constitutes a wholly disproportionate and unreasonable interference with the right to liberty.

Moving their challenge on Thursday, counsel Micheál O’Higgins said it was a compelling application given the humanitarian situation that may arise.

Counsel said this was because his side had letters from two doctors saying a newborn infant would be highly vulnerable to infection if placed in a quarantine hotel where there have been cases of outbreaks of Covid.

The doctors said they should be exempt from the regulation and allowed to quarantine at home with their baby.

The couple, who cannot be named to protect the identity of the child, travelled to Ukraine for the birth of their baby on April 5.

The child has no entitlement to Ukrainian citizenship but they have obtained an emergency travel certificate for him which expires on Monday next.

They had booked to fly home on Saturday but in the meantime, Ukraine was added to the banned list of countries.

There are no more rooms available until Monday, when the travel certificate expires, and airlines are being told not to allow people board from these countries if they don’t have a pre-booked room, they say. As a result they will be denied boarding either in Ukraine or on a stopover.

An arrivals board in Terminal 2 at Dublin Airport. The couple are booked to fly home to Ireland on Saturday. Picture: PA

They are concerned about being stranded either in Ukraine or the stopover with a new born infant, counsel said.

They are also concerned about the safety of bringing their child to hotel quarantine which is not equipped with the practical or medical needs for a newborn.

Granting their counsel leave to bring the challenge on a one side only represented basis, Mr Justice Charles Meenan said he was satisfied they had raised an arguable case.

The minister for health had been written to twice before proceedings were brought without a substantive reply.

He was satisfied the minister was therefore on notice. The case is also against the ministers for foreign affairs, transport, Ireland and the attorney general.

This was a very urgent application in circumstances where there was a particularly serious issue involving the health and welfare of their ten day old baby and where the travel certificate expires on Monday.

He said the case could come back on Friday before the judge who will be hearing two other legal challenges involving the quarantine hotels.