An Irish couple who travelled to Ukraine for the birth of their boy through surrogacy have been given permission to take a legal challenge to the requirement to pre-book a room in hotel quarantine before they can fly home.
The High Court heard the couple and their son will be given an emergency travel certificate tomorrow to allow them to come home, but it will be valid only until Monday and there are currently no hotel quarantine rooms available to book.
They also say a room in a quarantine hotel would not be a suitable place for a ten-day-old baby and they want to quarantine at their home, which is near Dublin Airport.
Their lawyers told the court the way the quarantine scheme was being implemented was inadequate and disproportionate and they were at risk of being stranded abroad and prevented from returning home.
The court heard Minister for Health Stephen Donnelly had not made any substantive response to two letters sent on behalf of the couple over the last two days.
The matter will be back before the court tomorrow morning.
Mr Justice Charles Meenan said it was a particularly urgent and serious case involving the health, safety and welfare of a newborn baby.
In a sworn document outlined to the court, the couple's solicitor, Annette Hickey, said the baby was entitled to Irish citizenship as his father was Irish and had no residency entitlements under Ukrainian law.
The boy was born before Ukraine was made a designated state by the Government for the purposes of hotel quarantine.
The family are booked to come home on Saturday and are due to receive an emergency travel certificate for their son tomorrow, which must be used within three days.
The family say travellers from Ukraine are now obliged to pre-book a stay at a quarantine hotel before being allowed to board a flight to Ireland.
But they say there are currently no places available and it will not be possible to make a booking until Monday, by which time, their baby's emergency travel cert will have expired.
Ms Hickey said as it was currently impossible to book a quarantine room, it appeared the family would be denied boarding either in Ukraine or Germany.
She said they were very concerned about the possibility of being stranded with their baby and also concerned about bringing their newborn son into a quarantine facility in Ireland.
She said they are worried they will run out of supplies for the baby and also concerned it will be more difficult to have access to any necessary nursing or paediatric care the baby might need.
Senior Counsel Mícheál P O'Higgins told the court they had put in place arrangements at their home to care for their son and were fully aware of the need to quarantine at their home.
He said their solicitor wrote two letters to Minister Donnelly outlining the circumstances yesterday and on the previous day asking for confirmation that they would be exempt from the requirement to quarantine.
The court heard they had received no substantive response other than an acknowledgment and a reply saying he was considering the matter.
They say there are other Irish families pursuing surrogacy in Ukraine who may be affected by this.
The court was told there were no procedures in place allowing them to quarantine at home and no discretion available to gardaí or airport officials to make a humanitarian exemption in the case of a newborn baby.
An appeal against quarantine can only be taken once quarantining has begun.
The court was told the couple had letters from doctors saying it was not in the best interests of a newborn baby to be in a quarantine hotel, where there could be cases of Covid-19.
Mr O'Higgins said the quarantine scheme and the way it was being implemented was inadequate and disproportionate.
The family want a number of declarations from the court, including a declaration that the ministers for foreign affairs, transport and health have no power to direct airlines to refuse to accept passengers on flights if they have not booked a quarantine room.
Mr O'Higgins said he hoped Minister Donnelly would take a compassionate approach in this case.
Mr Justice Meenan said the couple had made an arguable case and he would give them permission to take their challenge.
He said the two letters sent to the minister meant he was effectively on notice of the action.
The matter will be back tomorrow morning before Mr Justice Brian O'Moore who is also due to hear two challenges to the legality of the detention of two women who are currently in quarantine.