New laws must allow women to take maternity leave who have used surrogate mothers to have children, according to the Equality Authority.
In its last annual report before its merger with the Human Rights Commission, the chair of authority Angela Kerins (pictured), 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.
Surrogacy involves gestating the baby in another woman's womb. A number of Irish couples have used foreign surrogacy mothers, usually from India, Ukraine and America.
Presently, in such situations, the law recognises the birth mother as the mother for legal purposes. This is the case even if the woman contracting the arrangement with the surrogate mother has donated the egg, and is the biological mother.
“It’s terribly unfair that you have this new-born baby that is your baby, and you can’t take maternity leave,” Ms Kerins told The Irish Times.
“I think the vast majority of Irish people would not want a situation like that to exist.”
She outlined the background to one case. “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.”
She said the case – in which the mother argued she had been discriminated against in not having the right to maternity leave and benefit – failed because surrogate motherhood was not named in legislation regarding maternity benefits in the way adoptive motherhood was, for example.
“So the case failed because there was no law broken – as there was no law.”
The Government-appointed Commission for Assisted Human Reproduction recommended in 2005 that in surrogacy arrangements, the commissioning parents be deemed to be the legal parents.
No action has been taken by successive Governments since. Commissioning fathers must establish paternity and apply for guardianship through the Circut Court.
Austria, Germany and Italy, among other countries, ban the use of donated eggs because they believe it is wrong to split motherhood between a biological mother (that is a surrogate mother), a genetic mother (that is the egg donor), and even a social mother (that is someone who is neither the surrogate mother nor the genetic mother but who raises the child).
Austrian law seeks to ensure that medically assisted procreation takes place similarly to natural procreation, and that the basic principle of civil law, that it is always clear who the mother is, should be maintained by avoiding the possibility that two persons could claim to be the biological mother.
A recent ruling by the European Court of Human Rights held that Austria, in maintaining this principle, was not in breach of the European Convention of Human Rights.