Surrogacy couples face rights battle as mum loses out on paid leave
LEGAL and medical experts have called for clarity for couples choosing surrogacy after the European Court of Justice ruled that a woman who used a surrogate was not entitled to paid adoption leave.
The woman, identified only as Ms Z, is a teacher at a community school and applied to the Department of Education for paid adoption leave, which was refused.
She suffers from a rare medical condition that means while she is otherwise fertile, she has no uterus.
Using in-vitro fertilisation, the woman and her husband arranged for a surrogate in the US to carry their genetic child, who was born in April 2010.
However, when her employer refused to grant her paid adoption leave and offered unpaid parental leave, the woman brought a complaint to the Equality Tribunal, claiming she had been discriminated against on the grounds of sex, family status and disability.
The tribunal referred the matter to the European Court of Justice, which found the woman did not have an automatic right to paid adoption leave.
Solicitor Marion Campbell, who specialises in surrogacy, said she meets around five couples a month who are considering surrogacy.
"The question I am often asked when they come back with their children born through surrogacy is, 'What rights do I have for getting maternity leave or children's allowance?'
"To date, I've had to tell them they're not entitled."
Ms Campbell said Ireland is "way behind" the rest of Europe when it comes to surrogacy legislation, and couples here have few rights.
However, she said there is movement at a European level to introduce a Hague convention on surrogacy – similar to the convention on international adoption – that could force the Government here into action.
Ms Campbell is one of the legal team that represents a woman who earlier this year tried to get her name on the birth certificates of her children, who were born to her sister in a surrogacy arrangement.
In the High Court last March, Mr Justice Henry Abbott ruled that the genetic mother was entitled to be registered as the children's mother. The State is appealing that decision.
Senior clinical embryologist Declan Keane of the Repromed Clinic said couples who choose surrogacy are facing a "long, arduous task to confirm their parentage".
"The couples and individuals going through surrogacy and donor egg cycles are in a total state of limbo," he said.
"There are no guidelines in place to support couples or the clinics providing the services.
"If somebody comes to a clinic like ours and wants to access a surrogacy programme, we will find a clinic that will offer a programme and the couple will travel outside the State."
Mr Keane said the main countries couples travel to are the US, India, the Czech Republic, Georgia and Ukraine. He said the case of Ms Z and other recent cases showed the lack of guidance for couples and clinics.
"Since 2005 when we had the Commission on Assisted Human Reproduction, we've had no action on the points that were put forward by that group," he said.
"Their report is still there gathering dust. I would call on the Government to take that report off the shelf, dust it down and put a regulatory authority in place that can deal with the rapid advances in assisted human reproduction."
Responding to the Ms Z case, the Iona Institute said the Government must consider why many European countries ban surrogacy outright.
"The practice is almost inherently exploitative. In many cases surrogacy involves financial payment and it is normally economically disadvantaged women who offer their wombs to better-off commissioning couples or individuals," it added.