On the 7th July last, in the case of G v The Department of Social Protection, the High Court ruled that a woman whose child was born through surrogacy was not entitled to seek redress for being refused maternity benefit.
The mother in question had previously been diagnosed with cancer and as a consequence she had to undergo an emergency hysterectomy, sadly leaving her unable to carry her own child. The mother and her husband subsequently arranged for IVF treatment with a surrogate mother in the United States of America using their own genetic material. After the surrogate mother gave birth to the child, the couple was registered on the child’s birth certificate as her legal and biological parents.
Subsequently, the mother requested maternity leave with her employer which was granted but because her employer does not pay maternity leave allowance, she applied to the Department of Social Protection for Maternity Benefit. The Department of Social Protection refused her application on grounds that she was not eligible for same due to her being a mother through surrogacy. It is important to note that adoptive mothers are eligible for Maternity Benefit.
The mother with the support of the Equality Authority complained under the Equal Status Act to the Equality Tribunal which rejected her complaint against the Department of Social Protection. She appealed the decision to the Circuit Court and subsequently to the High Court.
Dismissing the mother’s case in the High Court, Ms Justice O’Malley ruled that whilst on the face of it, the woman had certainly been discriminated against because she did not bear the child; the difficulty was the payment from which the woman complained she was excluded from, was a payment created by statue. Ms Justice O’Malley further ruled that the woman could not maintain a claim of unlawful discrimination without effectively saying the Social Welfare Acts discriminates unlawfully. The Court directed that as the Equal Status Act and the Social Welfare Act are Acts of 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.
Ms Justice O’Malley was sympathetic to the mother and said it was easy to understand why the mother feels she has been treated badly but it was not open to the Court or the 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 Act. Understandably this left Ms Justice O’Malley in a difficult position to not interfere where an act of clear discrimination was before her. She was critical of the Department of Social Protection, saying that she was not persuaded by their insistence it could not set up a non-statutory scheme to make provision for women in the position of the applicant.
The day after this decision, the Irish Rights and Equality Commission recommended that the Equal Status Acts be amended to ensure protections for all mothers claiming maternity benefit. Chief Commissioner Emily Logan stated that “it is clear that there is a significant gap between protections that should be in place and what is provided by legislation”. As discussed by ourselves previously, legislation governing surrogacy is desperately needed and should be implemented as soon as possible.
If you have any queries on Maternity Benefits, Maternity Leave or have suffered from discrimination in the work place due to being pregnant, please do not hesitate to contact the office on (01) 6797930; where our experienced solicitors will guide you though your rights and entitlements.