THE EQUALITY TRIBUNAL has found that a school did not discriminate against a woman who had a baby through surrogacy when she was denied maternity or adoptive leave.

The woman, known as Ms Z, had previously taken a case to the European Court of Justice, which issued a legal opinion that she was not entitled to paid leave because her situation falls outside the scope of Irish law.

In her complaint to the Equality Tribunal, she claimed the school she worked at and the Department of Education, which sets the parameters of her employment contract, discriminated against her on grounds of gender and disability.

Ms Z suffers from a rare congenital disorder which means she has normal ovaries but was born without a uterus, making it impossible for her to support a pregnancy. She and her husband decided to go through a surrogate in California and in her submission to the tribunal, she said management at the school was supportive of her throughput the process.

However, when she enquired about paid leave after the baby’s birth, she was told “she was not entitled to anything”.

Stress

The woman gave evidence on how distressed she was to have to leave her daughter when school started after the summer holidays and how she went on sick leave due to the resulting stress. She said it would not be possible to have another child through surrogacy due to this and the whole situation had disadvantages for her in terms of income and seniority.

The provisions of Irish law on this topic make it clear that only women who are physically pregnant and go into confinement to give birth to a child are entitled to paid maternity leave. Ms Z’s employers argued that since she did not give birth to her daughter, these entitlements do not apply to her.

Because she and her husband were entered as parents on their daughter’s birth certificate, they also could not avail of provisions of the Adoptive Leave Acts.

Complex

The equality officer found 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”.

He found that because of this, and in line with the decision made previously by the Court of Justice of the European Union, the school did not discriminate against the woman by refusing to grant her paid maternity or adoptive leave.

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