The Irish Human Rights and Equality Commission (IHREC) has today recommended that the Equal Status Acts be amended to ensure protections for all mothers claiming maternity benefit.
The IHREC’s recommendation follows a decision of the High Court yesterday in G v The Department of Social Protection, a case concerning the exclusion from entitlement to a payment equivalent to maternity benefit to an Irish woman who had a child by means of a surrogacy arrangement in the US.
The High Court found that the woman had experienced discrimination on the basis of her disability, as she could not sustain a pregnancy having had a hysterectomy. Nonetheless, the Equal Status Acts could not override the terms of another statutory scheme, in this case, the Department of Social Protection’s statutory scheme for maternity benefit and adoptive benefit.
Judge Iseult O’Malley stated that she was not persuaded by the Department of Social Protection’s insistence it could not set up a non-statutory scheme to make provision for women in the position of the applicant.
However, she ruled that it was not open to either the court or the Equality Tribunal to rely on the Equal Status Acts to find there was discrimination, and the applicant was therefore excluded from any redress on the basis that the payment she was seeking was created by a statute which was outside the terms of the Equality Acts.
Chief Commissioner Emily Logan stated: “It is clear that there is a significant gap between protections that should be in place and what is provided by legislation.
“On foot of this judgment, the Commission recommends that the Minister for Justice and Equality amend the Equal Status Acts to ensure that State benefits schemes do not result in discrimination, and that individuals are not left without redress.
Ms Logan continued: “The Department of Social Protection as a public body has a duty to have regard to the need to eliminate discrimination and protect the human rights of persons to whom it provides services. This duty is established under Section 42 of the Irish Human Rights and Equality Commission Act 2014.
“The IHREC is willing to engage with the Department to discuss how best it can ensure that they neither directly nor indirectly discriminate across the nine grounds protected under equality legislation.”
In 2010, the Equality Authority granted legal assistance to the woman before her child was born, for the purpose of applying for maternity benefit. Thereafter, the Equality Authority granted her legal assistance before the Equality Tribunal to challenge the decision of the Department of Social Protection to refuse her maternity benefit as she did not satisfy the requirement of having been pregnant which was essential under the statutory scheme in order to qualify for maternity benefit. The woman challenged this refusal on the basis that the refusal was discriminatory on the grounds of her gender and her disability.
Ms Logan said: “The case is a matter of concern to the Commission, as it indicates the failure of legislation to protect from discrimination many applicants for services from the State, most particularly applicants for various social welfare benefits and allowances.
“As it stands, service providers in the private sector bear a heavier burden not to discriminate than the State itself since the private sector must always comply with the Equal Status Acts in the provision of goods and services.
“This disparity is clearly problematic in achieving comprehensive protection from discrimination and promoting equality more generally.”
The Equality Authority, and subsequently the Commission, on behalf of the woman, argued in this case for the broadest possible application of the equality legislation. It submitted that there was nothing to prevent the Minister for Social Protection adopting a non-statutory scheme to provide for the particular circumstances of women such as the appellant in this case, and in such circumstances, the Minister for Social protection did not enjoy an exemption under the equality legislation.
The Court accepted that the equality legislation should be given a liberal interpretation as “its overall purpose is to reduce the social wrong of discrimination based on improper considerations” and that schemes operated by the Department of Social Protection come within the meaning of services under equality legislation.
However, it found that although the appellant had been discriminated against because she could not bear her own child, she was excluded from any redress for that discrimination by virtue of the fact that the payment she was seeking was created by statute, thus taking it outside the terms of the Equal Status Acts.
Ends/
For further information please contact Niamh Connolly/Fidelma Joyce on IHREC 01 8589601/ 087 4399022. Twitter: follow us @_ihrec
Notes to Editors
Section 14(1) of the Equal Status Act provides that: “Nothing in this Act shall be construed as prohibiting— (a) the taking of any action that is required by or under— (i) any enactment or order of a court.”
It is the Commission’s recommendation that:
(a) The Government amend the Equal Status Acts to ensure that State benefits schemes do not result in discrimination, and that individuals are not left without redress.
(b) The Commission would engage with the Department of Social Protection to ensure that they neither directly nor indirectly discriminate across the nine grounds protected under equality legislation, and that it is directed towards promoting equality of opportunity as required by Section 42.
Public bodies have a duty pursuant to section 42, of the Irish Human Rights and Equality Commission Act, 2014 must have regard to the need to eliminate discrimination and protect the human rights of persons to whom it provides services.
Under Irish Human Rights and Equality Commission Act 2014 (2014 Act), the IHREC has a statutory remit to protect and promote human rights and equality in the State, to promote a culture of respect for human rights, equality and intercultural understanding, and to promote understanding and awareness of the importance of human rights and equality.
The 2014 Act was drafted and enacted with the stated intention of enabling the Commission to take account of new and emerging issues that are of relevance to human rights and equality. This is reflected in the definition of human rights in the 2014 Act which provides that the Commission’s mandate includes ‘the rights, liberties and freedoms that may reasonably be inferred as being inherent in persons as human beings, and necessary to enable each person to live with dignity and participate in the economic, social or cultural life in the State’.
Section 40 of the Irish Human Rights and Equality Act, provides that the Commission can grant legal assistance to an individual in relation to proceedings under the Equal Status Acts, the Employment Equality Acts and also in relation to proceedings involving human rights subject to certain statutory criteria.
This case was unsuccessful in the Equality Tribunal on the basis that section 14 of the Equal Status Acts excluded the relevant statutory scheme concerning the grant of maternity benefit from challenge before the Equality Tribunal. In granting legal assistance to the woman to bring her appeal on a point of law to the High Court, the Equality Authority considered that it was an important case to provide clarity regarding the extent of the protection from discrimination, and also to challenge the decision of the Circuit Court which was to the effect that a novel procedure such as surrogacy was not contemplated in 2000, when the Equal Status Acts were introduced and therefore the matter was outside the scope of the Acts. This finding was clearly rejected by the High Court.