The Irish High Court has refused maternity benefit to a woman whose child was born as a result of a surrogacy arrangement, rejecting arguments that she was discriminated against under the Equal Status Acts.
The woman, who was diagnosed with cervical cancer some years ago, had undergone a hysterectomy and was unable to support a pregnancy herself. The appellant and her husband subsequently entered into a surrogacy arrangement with a woman in another jurisdiction where surrogacy is legal. Upon birth the couple registered as the legal and biological parents of the child under Irish law.
The woman’s employer granted her special leave (similar to that of adoptive leave) but was not in a position to pay her during this period. When refused for maternity benefit, the Equality Authority wrote to the Department of Social Protection on the appellant’s behalf seeking that it use its discretion to provide payment similar to that of an adoptive, working mother.
A complaint was later taken to the Equality Tribunal and the Circuit Court on the grounds of disability (her medical condition), family status (in loco parentis, yet treated less favourably than other women with a newborn child) and gender (only arising for a woman).
The High Court upheld previous decisions that it was not open to the courts to use the Equality Status Acts to find discrimination in the Social Welfare Act. Judge Iseult O’Malley acknowledged that on the face of it the mother was discriminated against, but because the Social Welfare Acts and the Equal Status Act are both pieces of legislation of the Oireachtas, the courts cannot rule one unlawful based on the policy of the other.
Judge O’Malley agreed that the department provides a service to the public within the meaning of the Equal Status Act, in providing statutory benefits and allowances and non-statutory payment schemes. However the statutory provision at issue related solely to mothers, whether natural or adoptive, and, under Irish law, the applicant cannot claim the status of ‘mother’. However, the Court was ‘not persuaded’ by claims of the Department of Social Welfare that they could not set up a non-statutory scheme within the terms of the Social Welfare Acts for women such as the appellant.
The Irish Human Rights and Equality Commission released a statement on foot of the decision saying there is a “significant gap” between supports currently in place and what should be provided for in legislation. The Commission has recommended 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.
Click here to read the judgement.
Click here for IHREC’s Press Release.