In its final annual report (published on 9th July 2012) before being merged with the Human Rights Commission, the Equality Authority has drawn attention to the issue of the non-recognition in law of biological mothers of babies born to surrogate mothers. The Authority is calling for new or amended legislation so that genetic mothers of surrogate babies can be entitled to take maternity leave from work and claim child-benefit payments.
Reported in the Irish Times yesterday 10th July, 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. In outlining the background to one case, Ms. Kerins explained that 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.
In this particular case, the mother argued she had been discriminated against in not having the right to maternity leave and benefit and failed because surrogate motherhood was not named in legislation regarding maternity benefits.