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Government slammed after mother of surrogate baby denied benefit

The woman who brought the case was refused benefits as she did not meet the requirement of having been pregnant.
Jul 8th 2015, 8:20 PM 16,336 18

Updated: 8.20pm

A HUMAN RIGHTS GROUP has called for legislative changes to support women with children born through surrogacy. The Irish Human Rights and Equality Commission (IHREC) today recommended that the Equal Status Acts be amended to ensure protections for all mothers claiming maternity benefit.

The recommendation follows yesterday’s High Court ruling that a woman whose child was born through surrogacy was not entitled to seek redress for being refused maternity pay. The woman in question was left unable to sustain a pregnancy after a hysterectomy.

The Department of Social Protection refused to grant her maternity benefit as she did not meet the requirement of having been pregnant. In a statement, Chief Commissioner Emily Logan said there is a “significant gap” between supports currently in place and what should be provided for in legislation.

On foot of this judgment, the Commission recommends that the Minister for Justice and Equality amend the Equal Status Acts to ensure that State benefits schemes do not result in discrimination, and that individuals are not left without redress.

She said that the ruling “indicates the failure of legislation to protect from discrimination many applicants for services from the state, most particularly applicants for various social welfare benefits and allowances.” The Department of Social Protection has a legal duty under human rights legislation to prevent discrimination against those to whom it provides services, she added.


Judge Iseult O’Malley yesterday ruled that the Equal Status Acts could not override the terms of a statutory scheme, in this case the department’s scheme for maternity and adoptive benefit.

As both the Equal Status Act and the Social Welfare Acts were passed by the Oireachtas, the High Court could not rule that one was unlawful based on the policy of another, she said. O’Malley acknowledged, however, that the woman in question experienced discrimination on the basis of her disability.

She added that she was not persuaded by the respondent’s claim that it could not legally set up a non-statutory scheme to support women in the applicant’s position. The department in question often uses a range of non-statutory schemes as an alternative or supplement to primary legislation, she noted.

Read: Dublin’s three maternity hospitals are being moved to pastures new >

Read: Woman gives birth to baby using ovarian tissue frozen when she was a child >

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Catherine Healy


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