independent

Sunday 20 April 2014

Mother of child from surrogacy sues State for maternity leave

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belly

A WOMAN whose child was born as a result of a surrogacy arrangement claims she is suffering unlawful discrimination because she was refused maternity leave benefit.

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, a court heard.

As she and her husband still wanted children and are fertile, they 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. The couple were registered on the child's birth certificate 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, she appealed that decision to the High Court.

The Equality Authority is supporting the case of the woman, who cannot be named, the High Court heard.

The case opened yesterday before Ms Justice Iseult O'Malley who ordered nothing may be published that might identify the woman.

Outlining the case, Nuala Butler SC, for the woman, said it focused on 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 continued to work while undergoing IVF treatment and 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, counsel said.

The woman is entitled to benefit because she was in the same position as any other mother, counsel argued.

ELIGIBILITY

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.

The Social Protection Minister was not entitled to define terms of eligibility for maternity benefit in a discriminatory manner and then use those terms to argue the woman was not entitled to redress because she did not meet the criteria for eligibility, counsel submitted.

Gerard Durcan SC, 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, counsel said.

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