Mothers by surrogacy not entitled to maternity leave

The Irish Circuit Court has heard that a mother whose baby was born by surrogate was refused maternity leave as she was not entitled to it. Although the woman’s employer allowed unpaid maternity leave, the Department of Social Protection refused her claim for maternity allowance as it claimed she had no entitlement to it. The woman’s solicitor was told that she was not entitled to the allowance as she had not carried her own pregnancy and was not an adoptive mother. The woman then made a claim to the Equality Tribunal under the Equal Status Acts. The Equality Officer however determined that the woman had not established a prima facie case of discrimination on the grounds of gender, family status or disability. This decision was then appealed to the Circuit Court.

Gerard Durcan SC who appeared for the Department of Social Protection argued that surrogate births were unregulated and outside the statutory social welfare code to which the minister was obliged to adhere. He further argued that it would be more appropriate that surrogacy be regulated by way of legislation rather than by the Equality Status Acts, the Equality Tribunal or the courts.

Judge Lindsay in the Circuit Court reserved judgment.

In England, a similar case is being taken to the European Court of Justice. In this case, a woman’s employer refused to grant her maternity leave after she had a child through a surrogate mother. Her employer had offered her a career break, unpaid leave and extended holiday instead of maternity leave. The UK employment tribunal referred the case to the ECJ to determine whether the lack of provision for surrogacy in UK parental leave laws is compatible with EU directives.

Click here to read an article on the Irish case in the Irish Examiner.

Click here to read a note on the English case.

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