Gay couple in Canada receive Irish passport for son but remain in ‘legal limbo’

A gay Irish couple living in Canada have finally received an Irish passport for their son after a year of "jumping through hoops" to prove the child's parentage.

Jay O'Callaghan and his husband, Aaron O'Bryan had their son Jake through a surrogate in 2017 in Toronto, where the couple have lived for seven years.

On Jake’s Canadian birth certificate, both O’Callaghan and O’Bryan are listed as his parents, but under Irish family law, neither man had legal rights over their son without DNA proof of parentage.

In Ireland, the surrogate mother and her husband were considered Jake's legal parents, even though she has no biological connection to Jake - a donor egg was used - and relinquished all rights.

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After applying for an Irish passport for Jake in January 2018, the couple were told they would need to apply for a declaration of parentage, a costly process which involves appearing before an Irish court with DNA tests to prove one of them is the biological father. The couple had already proven this in Canada.

But following a number of articles in the Irish and Canadian media, including an article in The Irish Times, they received a letter from the passport office informing them there was another route they could take to avoid having to appear in court.

They were required to supply a DNA test to prove one of the men was the biological father, and complete an affidavit stating that O’Callaghan and O’Bryan were the main decision makers for their son, and that the surrogate or her husband - if she had one - have no parental rights, even though neither would be genetically connected to Jake.

They also had to prove that O’Callaghan, O’Bryan and Jake were all habitual residents in Canada.

“Looking back on the past year, it was a lot of stress and tears for us but in the end we are so happy to officially say that our son is an Irish citizen and we have his passport to prove it,” O’Callaghan says.

They received the passport in February, but only the biological father has parental rights over Jake in Ireland.

The Children and Family Relationships Bill passed through the Oireachtas prior to the same-sex marriage referendum in 2015, amended Irish family law to extend parental rights to "non-traditional" families, but sections two and three, which deal with donor-assisted reproduction, have not yet been enacted, leaving parents and their children in legal limbo. The difficulties apply equally to same-sex and heterosexual couples.

“Because one of us is biological, that dad will have legal rights as a parent in Ireland, but the other dad is in limbo. Even if we applied for guardianship, it does not give full legal rights to the second parent,” O’Callaghan says.

Minister for Health Simon Harris said last July that he hoped the remaining sections of the Act would be commenced in the autumn, but this has not yet happened.

The legislation as it currently stands deals only with donor-assisted reproduction carried out at a clinic. The Act does not change the basic rule that the birth mother is the legal mother of a child, even if they have no biological connection, in the case of surrogacy.

Couples such as O’Callaghan and O’Bryan who have used a surrogate, or women who use a sperm donor known to them rather than a reproduction clinic, would not be covered even if these sections of the Act are enacted.

“Although we have Jake’s passport, the Irish state does not recognise me and my husband as equal in relation the rights of our son,” O’Callaghan says.

“This is a huge deterrent to move home. Nobody would want to return to their home country that does not give equal rights to a family based on their sexual orientation. Lucky we have that in Canada today.”