G. v Department of Social Protection

JudgeMs. Justice Iseult O'Malley
Judgment Date07 July 2015
Neutral Citation[2015] IEHC 419
CourtHigh Court
Docket Number[Record No.2012/150 CA],[2012 No. 150 CA]
Date07 July 2015



[2015] IEHC 419

[Record No.2012/150 CA]


Employment – Discrimination – Equal Status Act, 2000 – Maternity Protection Act – Adoptive Leave Acts – Surrogacy – Whether refusal to grant benefits to a mother not being biological or adoptive would be unlawful discrimination

Facts: The appellant sought an order for setting aside the order of the Circuit Court upholding the decision of the Equality Tribunal denying the payment equivalent to maternity or adoptive benefits to the appellant. The appellant contended that she being the genetic mother of the child born out of a surrogacy arrangement was entitled to those benefits. The respondent contended that since the appellant was neither the biological nor adoptive mother of the child, she could not claim benefits under Equal Status Act, 2000.

Ms. Justice Iseult O'Malley dismissed the appeal of the appellant. The Court observed that the remedial statutes must be interpreted broadly keeping in mind the purpose for which they were enacted. The Court held that the Equal Status Act, 2000 encompassed the statutory as well as non statutory payment schemes; however, it was not the function of the Courts to see whether the non statutory schemes were enacted or not. The Court found that the appellant under Irish law had no recourse as she could not compare herself with either a biological or an adoptive mother for the purpose of discrimination. The Court expressed its dismay over the lack of legislation on the issue of surrogacy in Irish law. The Court found that the Equal Status Act, 2000 was limited in its operation and could not be extended to provide benefits to the mothers who could not be classified in either of the categories mentioned therein. The Court, however, opined that the appellant's claim for unlawful discrimination would not hold true without alleging that Social Welfare Act discriminated unlawfully.

JUDGMENT of Ms. Justice Iseult O'Malley delivered the 7th day of July, 2015

This appeal concerns a claim of discrimination, on grounds of disability, gender and family status, in the context of the birth of a child by a surrogacy arrangement. The appellant in the case says that she is the genetic mother and primary carer of a child born as the result of a surrogacy arrangement necessitated by her medical condition. She did not qualify for either maternity benefit (not having been pregnant and given birth) or adoptive benefit (since, being the registered mother of the child on its birth certificate, she has not sought to adopt it). Her claim is that she has been discriminated against by virtue of the respondent's refusal to grant her a payment equivalent to those benefits. The case turns on the correct interpretation of the relevant anti-discrimination legislation.


The appeal is against the order of the Circuit Court (Her Honour Judge Lindsay) made on the 5th July, 2012, upholding a decision of the Equality Tribunal that the complaint of the appellant fell outside the scope of the Equal Status Act, 2000 as amended (hereafter ‘the Act’).

Background facts

In 2006, the appellant was diagnosed with cervical cancer while pregnant. She had to undergo a hysterectomy, as a result of which she is unable to support a pregnancy. It is common case that her condition is a disability within the meaning of s.2 of the Act, which includes in the definition of disability ‘the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body’. The appellant is otherwise fertile as is her husband.


The appellant and her husband subsequently entered into a surrogacy arrangement in a foreign jurisdiction. The arrangement complied with the law of that state, which provides for detailed regulation of surrogate pregnancies and births. The gametes of both the appellant and her husband were carried by the surrogate mother, who gave birth to a baby in January, 2011. The appellant and her husband are the registered parents of the child under the law of the state in question, while the surrogate mother is not identified on the child's birth certificate.


Some months before the birth, the appellant made enquiries of the respondent as to the availability of maternity leave. She was informed that, under current legislation, she would have no statutory entitlement to maternity leave and as a result, no entitlement to maternity benefit.


An application to the appellant's employer for special leave from her employment (equivalent to that available for adoptive leave) after the birth of the child was successful insofar as the employer was happy to grant the leave, but it could not offer paid maternity leave and told her that she would have to seek payment for such leave from the Department of Social Protection directly.


On the 6th January, 2011, the Equality Authority wrote, on the appellant's behalf, to the Department of Social Protection, requesting it to use its discretion to give a payment for leave comparable to that of a working, adoptive mother. It was acknowledged that the type of leave being granted by the employer had no statutory basis such as that set out in either adoption or maternity protection legislation. The case made was that the appellant was entitled not to be discriminated against by virtue of the Employment Equality Act (in particular ss. 2, 6 and 8) and the Equal Status Acts. The payment was sought on the basis that it was available to every other working mother who had a child either naturally or by adoption.


On the 20th January, 2011, the Department of Social Protection replied, setting out the qualification conditions for adoptive benefit and maternity benefit. Adoptive benefit required, inter alia, proof of adoption by way of a certificate of placement or a declaration of suitability issued by An Bord Uchtála. Eligibility for maternity benefit required certification by a medical practitioner as to the confinement of the mother. In the circumstances, neither benefit was payable, and to make a payment outside the statutory framework would, according to the Department, be ultra vires.


On the 15th March, 2011, a notification was sent to the respondent, in the form prescribed by the Act, setting out the basis on which the appellant considered herself to be treated less favourably than others contrary to the Act. The appellant said that, as she had neither given birth to nor adopted her child, she could not comply with the statutory regulations for maternity or adoptive benefit. She was, however, a mother with a newborn child to care for and she submitted that she was comparable to both a working natural mother and a working adoptive mother.


The notification invoked the rights of the appellant under Article 41 of the Constitution (the obligation of the State to protect the family, the importance of the life of women within the home and the obligation of the State to ensure that mothers are not obliged by economic necessity to work outside the home).


On the 22nd March, 2011, the respondent replied, stating that its earlier correspondence did not constitute a formal disqualification for benefit, as no formal application had been received from the appellant for either maternity benefit or adoptive benefit. It was suggested that it was open to the appellant to lodge a late claim for these benefits. The letter also suggested that the appellant could contact her local Community Welfare Officer and apply for supplementary welfare allowance.


In response, it was pointed out that any application for either benefit would have to fail. The appellant had not been pregnant and did not give birth, and so could not obtain the requisite certificates from her employer and a medical practitioner. She and her husband had not adopted their child but were registered as its birth parents in accordance with the law of the state where the child was born. Nor was she eligible for supplementary welfare, since she was on leave from her employment. What she was seeking was a payment equivalent to the statutory benefits provided to natural and adoptive mothers.


The Department of Social Protection replied by letter dated 11th May, 2011, reiterating that it could not act outside the legislation, and that a decision could not be made in the absence of any claim for a benefit or other payment.


Separately, the appellant's employer informed the Department of Social Protection on 8th June, 2011, that it considered the application for maternity benefit to be the appropriate application and filled in this form without completing the section in relation to certification.


On the 23rd June, 2011, the Equality Authority, on behalf of the appellant, filed a complaint before the Equality Tribunal.

The statutory context

Section 2(1) of the Act defines the concept of a ‘service’ as follows:

‘In this Act, unless the context otherwise requires –

…‘service’ means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes –

(a) access to and use of any place,

(b) facilities for –

i. banking, insurance, grants, loans, credit or financing,

ii. entertainment, recreation or refreshment,

iii. cultural activities, or

iv. transport or travel.

(c) a service or facility provided by a club…

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies.’


Section 3 (as amended by the Equality Act, 2004) provides in relevant part as...

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