The High Court has dismissed an appeal by G. over the refusal of maternity or adoptive benefit after the birth of a child through surrogacy, concluding that the Equal Status Acts could not be used to fill a gap in legislation governing surrogacy.
In a judgment delivered on 7 July 2015, Ms Justice Iseult O’Malley said the appeal was on a point of law only. It challenged a Circuit Court decision upholding the Equality Tribunal’s dismissal of G.’s complaint.
G. had been diagnosed with cervical cancer while pregnant in 2006 and underwent a hysterectomy, leaving her unable to carry a pregnancy. She and her husband later entered a surrogacy arrangement abroad. Their child was born in January 2011, and they were registered as the child’s parents under the law of that jurisdiction.
The Department of Social Protection said G. did not meet the statutory conditions for maternity benefit because she had not given birth, or for adoptive benefit because she had not adopted the child. G. argued that, as the child’s genetic mother and primary carer, she was treated less favourably on grounds including disability and family status. She also argued that the Department should reasonably accommodate her or provide an equivalent payment.
The Equality Officer dismissed the complaint in November 2011, finding that the requested benefit did not exist in the statutory scheme and that a payment outside it would be beyond the Department’s powers. The Circuit Court affirmed that decision in July 2012.
On appeal, the Department accepted that its administration of statutory benefits and other payment schemes was a service under the Equal Status Acts. Justice O’Malley held that the legislation should be read broadly enough to cover novel situations. She also said the Department could operate non-statutory schemes and was not prohibited from making payments outside statutory benefit criteria.
But the court found that G. could not compare herself directly with women who had given birth or adopted, because Irish law did not recognise her as the child’s mother. The judge rejected the gender discrimination claim. She said the disability and family-status arguments raised more complex issues, but did not decide the correct interpretation of the relevant discrimination provisions because it would not determine the appeal.
The central obstacle was that the benefits at issue were created by statute. The court held that finding unlawful discrimination under the Equal Status Acts in this case would, in effect, mean finding the social welfare legislation deficient by reference to another Act of the Oireachtas. The High Court could not make that finding in these proceedings. It also held that “provision” in the indirect-discrimination section did not include a statutory provision.
Justice O’Malley concluded that the Equal Status Acts could not be used to fill the legislative gap on surrogate births and dismissed the appeal. The court did not order a benefit payment or compensation.