Trans woman to challenge State's refusal to recognise her as biological mother of child

The woman submits that if she had to claim to be the 'father' of her child, it would be an 'offensive, discriminatory and unjust attack' on her person, gender identity, legal status and on same-sex marriage

The woman is seeking a declaration from the High Court that she is legally and genetically a parent of the child. File photo

A UK trans woman, who used her frozen sperm to have a baby with her wife, has been granted permission to bring a High Court challenge against a refusal to grant Irish citizenship to the child on the basis that she is not the biological mother.

The woman — who has Irish citizenship while her wife does not — submits that if she has to claim to be the "father" of the child as part of the application, it would be an "offensive, discriminatory and unjust attack" on her person, gender identity and legal status.

At the High Court this week, the woman was granted leave to challenge a refusal by the State, which does not recognise her as the birth mother, to enter the child on the Foreign Births Register.

The case is being taken by the child through the woman against the Minister for Foreign Affairs, the Attorney General and Ireland. The woman is seeking a declaration from the High Court that she is legally and genetically a parent of the child.

She is also seeking an order compelling the State to register the child on the Foreign Births Register and for the child to be granted citizenship under Section 7 (1) of the Irish Nationality and Citizenship Act, 1956.

Persons born outside of Ireland who have an Irish national grandparent born in Ireland may obtain Irish citizenship through registration with the Foreign Births Register, which is maintained by the Department of Foreign Affairs.

In submissions to the High Court the woman, who was born male, states that she is a UK resident but with Irish citizenship through her own lineage.

The submissions state that the woman had stored sperm with a UK fertility clinic, intending it to be used at a future date. She changed her name and transitioned from a man to a woman under UK law, receiving a UK gender recognition certificate.

The woman married her female partner and frozen sperm was then used to have a baby with her wife by an IVF procedure at a UK clinic.

The woman says she fears any UK withdrawal from the European Convention on Human Rights would mean her family could lose its protections and status in that country.

It is submitted by the woman that her child was refused entry into the foreign births registry — thereby denying Irish citizenship — as the woman was not the biological mother of the child and because her wife, who gave birth to the child, was not an Irish citizen.

The woman submitted that the Department of Foreign Affairs informed her that "under Irish law, as applied to date, the mother of the child is the woman who gives birth to the child and therefore the child would derive their citizenship through that mother".

It is claimed by the woman the department's position is that, because she is not the biological mother of the child, she therefore does not meet the requirement of an Irish citizen parent and the application cannot proceed.

The woman further submits that she could have claimed to be the "father" of the child and "could have possibly obtained citizenship by descent that way". 

She said:
I feel it would invalidate me as a trans woman, invalidate my legal status as a woman and invalidate my same-sex marriage.

The woman submits that if she had to claim to be the "father" of the child, it would be an "offensive, discriminatory and unjust attack" on her person, gender identity, legal status and on same-sex marriage.

The woman also submits this would also be an unjust attack "on the State's obligation to protect the family as the natural and fundamental unit group of society".

Ms Justice Sara Phelan granted the woman leave for judicial review of the matter and adjourned the case to January.