Woman appeals maternity benefit refusal

A woman whose child was born as a result of a surrogacy arrangement has brought a High Court action alleging the State’s refusal to pay her maternity benefit amounts to unlawful discrimination. The Equality Authority is supporting the woman’s case.

The woman became seriously ill with cancer when pregnant some years ago and had to have an emergency hysterectomy which left her unable to carry a pregnancy, the court heard.

She and her husband later entered into an arrangement with a surrogate who agreed to be implanted with their genetic material fertilised via IVF treatment.

The surrogate gave birth to the couple’s daughter in a US state where surrogacy arrangements are lawful and the couple were registered on the child’s birth certificate there as her legal and biological parents.

The woman’s employer agreed she could avail of maternity leave but, because the employer does not pay maternity leave allowance, she applied to the Department of Social Protection for the state allowance but was refused on grounds she was not eligible.

The woman brought a complaint under the Equal Status Act to the Equality Tribunal and, when both it and later the Circuit Court rejected her complaint, initiated High Court proceedings against the minister for social protection. The case opened yesterday before Ms Justice Iseult O’Malley who ordered nothing may be published that might identify the woman.

Nuala Butler, counsel for the woman, said the case was concerned with interpretation of provisions of the Equal Status Act and the status of family members when a child is born via a surrogacy arrangement.

The woman sought maternity benefit so she could have time to bond with her child, counsel said. The eligibility criteria required production of a medical certificate concerning pregnancy. In the case of an adopted child, a woman could also secure a payment on production of a certificate from the Adoption Authority.

In this case, the woman clearly was not pregnant and was not proposing to adopt her daughter as she was registered as the child’s legal and genetic mother, Ms Butler said.

The woman is entitled to benefit because she was in the same position as any other mother who had given birth to, or adopted, a child and who wanted time to bond with that child, she argued.

The woman was being discriminated against on grounds of her family status; disability (in the sense her medical condition meant she could not carry a pregnancy); and gender, counsel argued.

Gerard Durcan, counsel for the minister, argued the claim related to the provision of a “service” and the woman had failed to make a case she was being treated less favourably than others in a position similar to her.

The maternity benefit scheme was set up by the Oireachtas in legislation and the minister had to accept the choices made by the Oireachtas concerning the social welfare code, he said.

The case continues.