The Equality Tribunal has found that a school did not discriminate against a female employee who had a baby though surrogacy when she was denied maternity or adoptive leave. After referring questions to the Court of Justice of the European Union for preliminary ruling, the Equality Officer found that there was no discrimination based on either gender or disability, because of the legislative gap in Irish law.
Readers of the PILA Bulletin may recall our coverage on the Court of Justice of the European Union (CJEU) ruling on maternity and adoptive leave for mothers of babies born through surrogate mothers. Click here for our report on the ruling, and click here for the Advocate General’s opinion.
In this case, Ms. Z has a rare congenital disorder which prevents her from having children. She and her husband opted for surrogacy to bear a child, through an agency in the US. She was employed as a teacher and she was allowed time off work from her employer but she was refused paid maternity leave or the equivalent of paid adoptive leave. It was accepted that she was a person with a disability within the meaning of the Employment Equality Acts, however surrogacy is currently unregulated in Ireland and neither of the relevant acts covered her situation. The entitlements to paid maternity leave are set out in the Maternity Protection Acts 1994-2004, and they are only available to women who are physically pregnant and give birth to their child. The Adoptive Leave Acts 1995-2005 say that an adoption needs to have taken place to be eligible for adoptive leave. The applicant and her husband were entered as parents on their daughter’s birth certificate and therefore did not adopt their daughter.
The deciding Equality Officer accepted that there was a lack of legislation in Ireland, stating, “there is no statute to address the complexities of the situation intended parents find themselves in, including any rights they might have in the workplace.” The Equality Officer was of the opinion that their investigation would benefit from a preliminary reference to the CJEU, under Article 267 of the TFEU, to get interpretation on the European aspects of equality legislation. The CJEU delivered its judgment (Case C-363/12) on 18 March 2014. The CJEU found that that “no unlawful discrimination took place when the respondents [the school and the Department of Education] refused the complainant paid leave following the birth of her daughter through a surrogacy arrangement.”
Accordingly, the Equality Officer found that there was no unlawful discrimination under European law. The Officer also concluded that in the absence of Irish legislation addressing surrogacy, the applicant was not entitled to paid maternity or adoptive leave.
Click here to read the article on TheJournal.ie about the case.
Click here to read the Equality Tribunal decision.
Click here to read a previous PILA report on the CJEU decision.