The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
E-mail: info@equalitytribunal.ie
Website: www.@equalitytribunal.ie
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2011-053
A Complainant
(Represented by Ms. Nuala Butler SC and Mr. Patrick Dillon-Malone BL on the instructions of The Equality Authority)
V
Department of Social Protection
(Represented by Mr. Gerard Durcan SC and Ms. Cathy Smith BL on the instructions of Chief State Solicitor's Office)
Case ref: ES/2011/0099
Issued: 18 November 2011
DECISION NUMBER DEC-S2011- 053 CASE REFERENCE ES/2011/0099
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination - Failure to provide reasonable accommodation - Gender - Family Status - Disability - Surrogacy - Provision of Goods and Services - Certain measures or activities not prohibited
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 27 June 2011. The respondent was notified of this complaint in accordance with the Acts on 15 March 2011. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 30 June 2011. An oral hearing, as part of the investigation was held in Dublin on 7 October 2011.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination, including a failure to provide reasonable accommodation, on the gender, family status and disability ground. The complainant submitted that Department of Social Protection (hereafter "the respondent") discriminated against her and failed to provide reasonable accommodation to her by not recognising the complainant's entitlement to Maternity Leave/Adoptive Leave pursuant to a statutory scheme after the complainant's child was born.
3. Case for the complainant
3.1. Facts
3.1.1. The complainant is the biological mother of her daughter who was born to a surrogate in another jurisdiction. The biological father of this child is the husband of the complainant. The birth certificate issued by that jurisdiction names the biological parents, that is, the complainant and her husband, as the mother and father. The difficulty the complainant has in relation to her qualification for Maternity or Adoptive Leave.
3.1.2. The complainant had a diagnosis of cervical cancer while pregnant in 2006. She was required to undergo a hysterectomy and as a result of this is unable to support a pregnancy. The complainant thus has a disability within the meaning of the Equal Status Acts. She is otherwise fertile as is her husband. The complainant and her husband chose to avail of a surrogacy service outside this jurisdiction that provides for a system whereby the biological parents are entitled to register themselves as the parents of the child. Thus the birth certificate does not in anyway acknowledge the surrogacy as the child is the biological and genetic child of the complainant and her husband.
3.1.3. In September 2010, the complainant was informed that, under current legislation, the complainant would not have any statutory entitlement to maternity leave or maternity benefit.
3.1.4. In December 2010, the complainant was granted special leave equivalent to that available for adoptive leave by her employer. However, the employer does not offer paid maternity leave to its staff and informed the complainant that she would have to seek payment for such leave from the respondent. Such a request was made in January 2011.
3.1.5. The respondent replied to the complainant's query on 20 January 2011 informing her that it could not pay the complainant either maternity benefit or adoptive benefit within the current legislative framework.
3.1.6. A formal application for Maternity and Adoptive Leave, duly completed by the complainant's employer, noting the difficulties the complainant had in providing the relevant information, was forwarded to the respondent on 15 June 2011.
3.2. Discriminatory treatment
3.2.1. The complainant asserts that she has been unlawfully treated by reason of her gender and/or family status and/or disability contrary to section 5(1) in circumstances where the respondent has refused to grant her payment for leave similar to that which is available to recipients of maternity benefit or adoptive benefit in respect of the surrogate birth of her biological child.
3.2.2. It was submitted that the failure or refusal of the respondent to grant her a payment for leave from employment comparable to those available for recipients of maternity benefit or adoptive benefit, results in her being less favourable treated than other persons in a comparable situation.
3.2.3. In addition, it is submitted that the respondent has failed to provide the complainant with reasonable accommodation in accordance with section 4(1) insofar as the respondent has refused or failed to do all that is reasonable to accommodate the complainant's needs by providing special treatment and facilities in circumstances where without such special treatment of facilities it would be impossible for her to avail of the service provided by the respondent. The complainant has clearly been treated less favourably than a person without a disability who could carry her own child. Equally, she has been treated less favourably than a person with a different disability whose disability would not affect her ability to conceive and carry a child and/or a person with a disability who adopts as a result of not being able to produce gametes for gestational surrogacy.
3.2.4. Because of the manner of the child' birth, the complainant is unable to fulfill the strict conditions of the statutory regime. In respect of the maternity benefit, the complainant is unable to obtain a medical certificate of pregnancy because she was not, and cannot become, pregnant. In respect of adoptive leave, the complainant cannot obtain evidence of adoption because she has not adopted her child. This is despite the fact that:
she is the biological and genetic mother of the child and similarly with natural and adoptive mothers she is the primarily responsible for the care and nurturing during the post-natal period;
her employer has granted her leave in connection with the birth of her child; and
she has fulfilled the relevant PRSI contribution conditions which apply under the statutory scheme.
The complainant is thus being treated less favourably than mothers in a comparable position who are deemed eligible to benefit under the Maternity Protection Acts and the Adoptive Leave Acts. It was submitted that this has caused financial strain and distress on the complainant and her family.
3.2.5. It was submitted that the critical consideration underlying the statutory regime is the facilitation of the full-time care for the child by his or her primary carer during the critical period of time following his or her introduction to the family. This is a reflection of the importance that the State attaches to the special bond that is created between the child and his/her primary carer during this period. Under the statutory regime, this role falls primarily to the child's mother. It is only in exceptional circumstances where the child does not have a mother that the statutory protection is extended to the child's father. Such an approach has been justified in European jurisprudence (Case C163/82 Commission v Italy).
3.2.6. It was submitted that the respondent's refusal to consider alternative evidence in place of the required medical certificate of pregnancy or a certificate of placement results in discrimination against the complainant on account of her disability. Such an alternative would not impose any additional financial burden on the respondent as if the complainant had carried her own child or adopted a child the respondent would have made the same payments.
3.2.6. In the alternative, it is submitted that the complainant has been discriminated against on the ground of gender. The protection of gender related discrimination extends beyond mere comparisons between men and women. Discrimination in such circumstances may relate to the very definition of the characterisation itself and may occur where a person is subjected to less favourable treatment on the basis of a condition or an illness which applies to one gender and not another. In the circumstances of this case, the complainant has been denied a service that the respondent provides to other mothers for the sole reason that she has had to use a surrogate mother to carry and give birth to her child.
3.2.7. In the alternative, the respondent discriminated against the complainant on the ground of family status. The complainant is a person with responsibility for a person under the age of 18 and is being treated less favourably than other persons with a different family status, in particular those who are pregnant.
4. Case for the respondent
4.1. The respondent has the responsibility for social welfare payments in Ireland. It only has the power to pay benefits and allowances provided by statute, in particular the Social Welfare (Consolidation) Act 2005. Contributions are paid into the Social Insurance Fund for the purpose of paying benefits and other payments arising under the 2005 Act, the Redundancy Payments Acts 1967 to 2003 and the Protection of Employees (Employer's Insolvency) Acts 1984 to 2004.
4.2. The respondent submitted that section 2 of the Acts defines service as "a facility of any nature which is available to the public generally or a section of the public..." The complainant has accepted that the service that she seeks does not exist and is expressly seeking a benefit to be extended to her on a special or discretionary basis. The payments sought by the complainant are expressly provided for by statute. There is no provision for "special leave" as contended by the complainant, nor any discretion on the part of the respondent to make such a benefit. There is no statutory scheme in existence which extends the benefit sought by the complainant to her nor is there any authority or discretion on the part of the respondent to extend the benefit contended for by her.
4.3. The respondent submitted that the complainant is asking the Tribunal to create a new statutory entitlement of "benefits comparable to an adoptive mother", thereby greatly exceeding the jurisdiction which is derived from the Acts. This is notwithstanding the statutory reality that there is simply no such statutory entitlement. The High Court has made it clear that the Tribunal is not entitled to exceed its jurisdiction in the manner in which it is being encouraged to do by the complainant, it is submitted that the relevant authorities are binding and conclusive and the Tribunal has no entitlement to such power.
4.4. It is further submitted that the matters argued for by the complainant inevitably involve matters of constitutional law which lie outside the jurisdiction conferred on the Tribunal by statute. The respondent rejected the complainant's argument that the while the matter of surrogacy remains unregulated in this jurisdiction, in order to determine the issues in this case, it is not necessary for the Tribunal to adjudicate upon the complex legal issues to which this process may give rise. It is clear that throughout the complainant's submission the Tribunal is asked to accept that third definition of "mother" not currently recognised by Irish law, it is impossible for the Tribunal to determine such issues without adjudicating on the matter, which it clearly does not have jurisdiction to do.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. The respondent submitted that statutory schemes, such as Maternity and Adoptive Leave, are not a service within the meaning of the Acts. I not accept this interpretation as it has determined in a number of decisions that such statutory schemes provide a service within the meaning of the Acts. While it was argued that that the language of the Acts, in section 2 defining service, does not specifically mention statutory entitlements, I find that "banking, insurance, grants, loans, credit or financing" is not an exhaustive list and, by applying a purposive approach appropriate for a remedial statute such as the Equal Status Acts, I find that such definition is not exhaustive and is intended to be read as 'including'. I do accept that the language used in "available to the public or a section of the public" is clear using every day language and therefore, in the context of statutory entitlements, applies to actual schemes that are in place. It is clear that the service that the complainant is seeking - maternity leave for a mother who has not carried her own child or adoptive leave for a person who has not adopted her child - does not exist in the statutory scheme and therefore this Tribunal has to find that the complainant has not been refused such a service within the meaning of these Acts.
5.3. I accept that the facts of this case do present a compelling complaint. However, I find that the Irish legal system operates a default legal assumption that the person giving birth to a child is the child's legal mother. There is no legal recognition of surrogacy in this jurisdiction and it is clear that this is a matter that will raise a number of complex issues for the legislature to consider in due course. These considerations are not, however, a matter for this Tribunal with its limited jurisdiction. I find that almost all legislation addressed to the regulation of society resorts to some form of classification and such can be used as a classification of inclusion or exclusion for various legislative purposes. There is nothing, in accordance with section 14(1) of these Acts that entitles this Tribunal to find such classification as invidious, unfair or discriminatory. In deciding, as a matter of policy, to establish a special scheme for Maternity and Adoptive Leave, the Oireachtas necessarily had to define the scope and limits of its application. I am satisfied that the definitions currently contained in the statutes do not recognise the situation that the complainant finds herself in and in such circumstances the respondent had no option but to turn down her application.
5.4. In relation to the alleged disability discrimination and the obligation to provide reasonable accommodation. It is clear that the complainant is protected by the disability ground as the treatment of her medical condition has resulted in 'the absence of a part of a person's body' within section 2(1)(a). It was argued that if her disability had been different, for example, if her ovaries had also been removed, she would have been able to avail of the Adoptive Leave entitlement. Such comparator considerations are not relevant for an obligation of reasonable accommodation to arise. Reasonable accommodation requirement arises in circumstances where a person, because of their disability, finds it impossible or unduly difficult to avail of a service. In the circumstances of this case, it was argued that the failure to provide the service of maternity benefit, made it unduly difficult or impossible for the complainant to avail of the entitlement. It was argued that the respondent could have simply accepted an alternative proof of the fact that the complainant was the child's mother and primary carer during the post-birth period. I find that the respondent cannot offer such special treatment as for it to do so would mean that it would have been acting ultra vires of the powers conferred to it by the statute.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. I find that the complainant has not established a prima facie case of discrimination on the gender, family status or disability ground.
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Tara Coogan
Equality Officer
18 November 2011