Mother by surrogacy ineligible for maternity allowance

A woman who had a surrogate pregnancy after her womb was removed due to cervical cancer was refused unpaid maternity leave on the grounds she was not entitled to it.

Barrister Nuala Butler SC told the Circuit Civil Court that the married 33-year-old, who cannot be identified, lost her own natural 15-week pregnancy at the time of her hysterectomy and was afterwards unable to carry another pregnancy.

As a result of the procedure, the woman, who cannot be identified, could not support a pregnancy and had a disability within the meaning of the Equal Status Acts, it is claimed.

Ms Butler, for the mother, said that although her employer was willing to allow unpaid maternity leave the Department of Social Protection refused a maternity allowance as she had no statutory entitlement to it.

The court heard she had healthy ovaries and was otherwise fertile, as was her husband. They went to the US, where her eggs had been harvested and one had been fertilised by her husband’s sperm.

The embryo was transplanted to the womb of the surrogate mother, who gave birth to a girl, now just over a year old. In what the woman described as a commercial arrangement, she said she and her husband paid all expenses, and paid a fee to the surrogate mother.

Before leaving the US, the baby had been registered and she and her husband had been recorded on the birth certificate as the biological parents. The baby now had an Irish passport.

The Department for Social Protection had told the woman’s solicitor, Garrett O’Neill, that the minister could not pay the allowance because the woman had not carried her own pregnancy, and she was not an adoptive mother.

Mr O’Neill had made a claim on her behalf to the Equality Tribunal under the Equal Status Acts.

Judge Alison Lindsay heard that the Equality Officer, Tara Coogan, determined that the woman, who claimed to be unlawfully discriminated against by being refused payments available to recipients of maternity or adoptive benefit, had not established a prima facie case of discrimination on the grounds of gender, family status, or disability.

Ms Butler said the decision of the equality officer was being appealed to the Circuit Civil Court in which the woman was seeking compensation to a maximum of €6,358.

Gerard Durcan, SC, who appeared with Cathy Smith BL for the minister, told the court surrogate births were unregulated and outside the statutory social welfare code to which the minister was obliged to adhere.

Mr Durcan said there could be more implications involved in birth by surrogacy than met the eye. A large number of people might have a biological child by surrogacy — couples, single people, same-sex couples — and stand in loco parentis.

He said that while there was nothing illegal about surrogacy, it was unregulated, and it would be more appropriate that it be regulated by way of legislation rather than the Equal Status Acts, the Equality Tribunal, or the courts. Judge Lindsay reserved judgment.