Ireland: mother of surrogate baby loses maternity benefit case

The mother of a child born through surrogacy has lost her challenge against a decision to reject her application for paid maternity leave at the Irish High Court.

The woman, who is the child's legal and genetic parent, had used a surrogate in the USA after treatment for cancer left her unable to become pregnant. She was granted maternity leave by her employer when the baby was born but, because it did not offer paid leave, she applied to the state for maternity benefit.

The Department for Social Protection (DSP) rejected her application, however, saying that the woman was not entitled to claim maternity benefits as she had not herself been pregnant.

Supported by the Irish Human Rights and Equality Commission (IHREC), the woman claimed that the decision amounted to unlawful discrimination under the country's Equal Status Acts, but her case was rejected by an employment tribunal and then by a circuit court, before being heard by the High Court (see BioNews 734).

Ruling against the woman, Ms Justice O'Malley in the High Court said that although it was 'easy to understand' why the woman felt that she had been discriminated against, the Social Welfare Acts exclude maternity payments to women who do not bear the child, report the Irish Times and RTE News.

The judge said it was not open to the court to find discrimination under one Act contrary to provisions under another Act, both passed by the Irish Parliament, the Oireachtas. Nor did the court consider it appropriate to address the issue of the woman not qualifying as a 'mother' under the relevant statutory provision, pending the introduction of surrogacy legislation (reported in BioNews 792). However, reports of the decision state that the judge was 'not persuaded' by the DSP's arguments that it could not set up a non-statutory scheme to provide for women who use surrogates.

The IHREC has since recommended that Ireland's equality legislation should be amended to ensure protection for all mothers, reports The Journal.

'On foot of this judgment, the Commission recommends that the Minister for Justice and Equality amend the Equal Status Acts to ensure that State benefits schemes do not result in discrimination, and that individuals are not left without redress,' said Chief Commissioner Emily Logan.

The European Court of Justice has previously ruled that women using surrogates are not entitled to paid maternity leave under EU law (reported in BioNews 747) although the UK has since legislated to extend adoption leave and pay to intended parents (reported in BioNews 748).