Couple with surrogate newborn challenge quarantine hotel directive

The High Court has granted permission to an Irish couple to challenge a 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 to guarantee their return passage to Ireland.

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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, Micheál O’Higgins SC said it was a compelling application given the humanitarian situation that may arise.

Vulnerable to infection

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 5th last.

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.

Medical needs

They are concerned about being stranded either in Ukraine or the stopover with a newborn 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 10-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 quarantine hotels.