Friday 15 December 2017

State entitled to refuse maternity benefit in surrogacy case -High Court told

Mary Carolan

THE State is entitled to make a policy decision refusing to provide maternity benefit to women who have children as a result of surrogacy arrangements, the High Court was told today.

The fact the State does not provide financial support in surrogacy situations does not amount to discrimination but is rather a policy decision the State is entitled to make, Gerard Durcan SC argued.

Even if the State recognised that a woman whose own genetic material was implanted in a surrogate was the mother of the child involved, that would not alter the situation, counsel added.

There was no basis for arguments that, because the State makes `adoptive leave' payments to mothers who adopt children, it should also make payments to women who have a child via a surrogacy arrangement, he said.

There were "noticeable differences" between surrogacy and adoption, particularly because there was a clear national and international legislative regime governing adoption but no such regime relating to surrogacy, he said.

The State's current position concerning surrogacy is that it will not render it illegal but it is not obliged to support it via financial benefits. While laws would be enacted soon to deal with surrogacy, he did not know what policy choices those would involve.

On these and other grounds, counsel argued there was no basis for claims the Minister for Social Protection's refusal to pay maternity benefit to a woman who had a child born as a result of a surrogacy arrangement amounted to discrimination either on grounds of family status, gender or disability (in the sense the woman involved is unable to carry a pregnancy herself).

Mr Durcan was making submissions opposing the woman's appeal, brought under the Equal Status Act and supported by the Equality Authority, against the rejection of her complaint the refusal to pay her maternity benefit amounts to unlawful discrimination.

The woman, who cannot be identified by court order,  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.

Because 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 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.

In her action, the woman claims she is entitled to benefit on grounds her position is comparable to any other woman who either gives birth to, or adopts, a child and who wanted time to bond with that child.

The Minister contends the claim relates to provision of a "service"

and the woman had failed to show she is being treated less favourably than other women involved in surrogacy arrangements.

The hearing, before Ms Justice Iseult O'Malley,  was adjourned on its second day today to allow the woman's lawyers time to address additional arguments advanced just yesterday on behalf of the State.

It will resume next March.

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