Push to enshrine in law genetic mothers' rights in surrogacies

NEW OR amended legislation is necessary to ensure genetic mothers of surrogate babies can take maternity leave from work and get child-benefit payments, the Equality Authority has said.

Issuing its last annual report before being merged with the Human Rights Commission, the authority highlighted the issue of the non-recognition in law of biological mothers of babies born to surrogate mothers.

Angela Kerins, chair of the authority, said it had supported three women who, though genetically the mothers of their babies, were not entitled to maternity leave because they had not given birth to their babies.

“It’s terribly unfair that you have this new-born baby that is your baby, and you can’t take maternity leave,” she said.

“ I think the vast majority of Irish people would not want a situation like that to exist.”

She outlined the background to one case. “The authority supported a case which sought the payment of maternity benefit to a mother who, following serious cancer, could no longer support a pregnancy. The complainant and her husband availed of a legally provided surrogacy service to achieve the birth of their biological and genetic child. The case was not successful before the Equality Tribunal but has now been referred to the European Court of Justice.”

She said the case – in which the mother argued she had been discriminated against in not having the right to maternity leave and benefit – failed because surrogate motherhood was not named in legislation regarding maternity benefits in the way adoptive motherhood was, for example.

“So the case failed because there was no law broken – as there was no law.”

She said it would be “very clever” of the Government to introduce legislation to ensure such mothers’ access to maternity leave and benefit, rather than force the family in this case to go to the European Court of Justice, where they face a six-year wait for the case to be heard.

She said there could be implications for the payment of child benefit to genetic mothers.

“The authority has other complaints in relation to support for surrogate parents on its caseload, and, as the Minister is aware, is advocating that legislation is introduced or amended to recognise the needs of this small group of new parents.”

On the forthcoming merger, she said it was “essential” the new Human Rights and Equality Commission was adequately funded.