Wednesday 25 April 2018

Woman whose child was born in surrogacy arrangement has lost legal challenge over a refusal to pay her maternity benefits

She claimed in the High Court the State's refusal to do so amounted to unlawful discrimination.
She claimed in the High Court the State's refusal to do so amounted to unlawful discrimination.

Tim Healy

A WOMAN whose child was born as a result of a surrogacy arrangement has lost legal challenge over a refusal to pay her maternity benefits.

She claimed in the High Court the State's refusal to do so amounted to unlawful discrimination.

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 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 when pregnant and had 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, fertilised via IVF treatment.

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 allowance but was refused on grounds she was not eligible.

The woman, supported by the Equality Authority, complained under the Equal Status Act to the Equality Tribunal.

When the tribunal, and later the Circuit Court rejected her complaint, she initiated High Court proceedings.

Dismissing the woman's case, Ms Justice O'Malley said it was "easy to understand" why the woman feels she has been treated badly.

However, it was not open either to the court, or Equality Tribunal, to rely on one Act of the Oireachtas - the Equal Status Act - to find there is discrimination contrary to that Act embodied in another Act, the Social Welfare Acts.

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.

A claim to be legally entitled to compensation necessarily involves a claim one has been subjected to a legal wrong.  But, in this case, the wrong could only be established on the basis one law can be held to be legally deficient by reference to another law, the Equal Status Act, she said.

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.

The judge also said she was "not persuaded" by the Department's insistence the social welfare acts prohibit it setting up a non-statutory scheme to make provision for women in the position of this applicant.

The Department frequently uses such schemes as a flexible alternative, or supplement, to primary legislation, she noted.

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