Mother of surrogate baby denied maternity benefit

A woman whose child was born as a result of a surrogacy arrangement has lost her High Court action alleging the State’s refusal to pay her maternity benefit amounts to unlawful discrimination in breach of the Equal Status Act.

Ms Justice Iseult O’Malley found the Equal Status Act cannot be used to “fill the gap” caused by the continuing absence of legislation to deal with surrogate births.

However, the judge added, she was “not persuaded” by the Department of Social Protection’s insistence that it could not set up a non-statutory scheme to make provision for women in the position of this applicant.

The case arose after the woman became seriously ill with cancer while she was pregnant and had to undergo an emergency hysterectomy which left her unable to carry a pregnancy.

She and her husband entered an arrangement with a surrogate who was implanted with their genetic material.

After the surrogate gave birth to their daughter in a US state where surrogacy arrangements are lawful, 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 eligibility grounds.

The woman, supported by the Equality Authority, complained under the Equal Status Act to the Equality Tribunal and, when both it and later the Circuit Court rejected her complaint, she initiated High Court proceedings.

However, Ms Justice O’Malley dismissed the woman’s case against the Department of Social Protection.

While, on the face of it, the woman has “certainly been discriminated against” because she did not bear her child, the difficulty was the payment from which the woman complained she was excluded was a payment created by statute, the judge noted.

The woman could not maintain a claim of unlawful discrimination without effectively saying the Social Welfare Acts discriminates unlawfully, she said.

Because the Equal Status Act and the Social Welfare Acts are Acts of the Oireachtas, and both embody policy choices made by the Oireachtas, the court could not rule one was unlawful based on the policy of the other, she said.

Earlier, the judge said 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.

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”, she said.

While this was no doubt “a source of great distress” to the woman, it was not for the courts, pending the introduction of legislation on surrogacy, to resolve the complex questions that need to be addressed.

The woman could not claim she was being discriminated against compared with the two categories of mothers recognised by Irish law — mothers who have given birth and those who have adopted children.