An Irish couple claims that their surrogate daughter could end up in a Ukraine orphanage where she was born, unless the Irish Department of Foreign Affairs issues her with an emergency passport.

The husband and wife are planning a High Court challenge which will aim to secure an Irish passport for the child so she can leave the Ukraine. The couple cannot be named for legal reasons.

A Dublin court heard on Monday that the infant, who was born earlier this year, may only stay in the Ukraine for 90 days, but is unable to leave as she has no travel documentation. If she remains in the Ukraine for more than the three month period she could be placed in an orphanage.

The court heard that the surrogacy with a Ukrainian woman was assisted by a clinic in the eastern European country.

Counsel for the couple, Mary O'Toole, told the court that results of the DNA test show that the man is "99.99998 percent" likely to be the biological father. Both the husband and wife are registered on the child’s birth certificate as her parents.

Initially the couple applied in Ireland for travel documentation, but their lawyers were notified that the application had been referred to the chief state solicitor's office, which in turn told them last week that it intended to seek the advice of the attorney general on the matter.

The couple’s High Court proceedings are against the incoming minister for foreign affairs for an order which would compel the minister to furnish the child with an Irish passport or emergency travel documentation.

The husband and wife claim that failure to expedite their application is unlawful and an infringement of the child’s constitutional and European Convention rights.

Counsel for the couple said the parents have serious concerns because their child is not entitled to Ukrainian citizenship and is in effect stateless.

The matter will be presented to the High Court later this month.