Maternity benefit refusal is ‘unlawful discrimination’

High Court told woman whose child was born in surrogacy arrangement denied payments

A woman whose child was born as a result of a surrogacy arrangement has brought a High Court action alleging the State's refusal to pay her maternity benefit amounts to unlawful discrimination. The Equality Authority is supporting the woman's case.

The woman 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, the court heard.

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.

The woman brought a complaint under the Equal Status Act to the Equality Tribunal and, when both it and later the Circuit Court rejected her complaint, initiated High Court proceedings against the Minister for Social Protection.

The case opened yesterday before Ms Justice Iseult O’Malley who ordered nothing may be published that might identify the woman.

Outlining the case, Nuala Butler SC, for the woman, said it was concerned with interpretation of provisions of the Equal Status Act and the status of family members when a child is born via a surrogacy arrangement.

The woman continued to work while undergoing IVF treatment and sought maternity benefit so she could have time to bond with her child, counsel said. The eligibility criteria required production of a medical cerificate concerning pregnancy. In the case of an adopted child, a woman could also secure a payment on production of a certificate from the Adoption Authority.

In this case, the woman clearly was not pregnant and was not proposing to adopt her daughter as she was registered as the child’s legal and genetic mother, counsel said.

The woman is entitled to benefit because she was in the same position as any other mother who had given birth to, or adopted, a child and who wanted time to bond with that child, counsel argued. Maternity leave here is primarily focussed on developing a relationship between mother and child and, if holiday and other entitlements were included, could be extended for up to a year, she noted.

The woman was being discriminated against on grounds of her family status, disability (in the sense her medical condition meant she could not carry a pregnancy) and gender, counsel argued. The woman was in a comparative position to other mothers but was treated differently from them, she submitted.

The Minster was not entitled to define terms of eligibility for maternity benefit in a discriminatiory manner and then use those terms to argue the woman was not entitled to redress because she did not meet the criteria for eligibility, counsel submitted.

Beginning his opposing arguments on behalf of the Minister, Gerard Durcan SC argued the claim related to the provision of a “service” and the woman had failed to make a case she was being treated less favourably than others in a position similar to her.

The maternity benefit scheme was set up by the Oireachtas in legislation and the Minister had to accept the choices made by the Oireachtas concerning the social welfare code, counsel said.

The case continues.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times