Surrogacy, Equal Status and Social Welfare Benefits

Mel Cousins


This case note discusses the recent High Court decision concerning a claim under the Equal Status Acts 2000-2012 arguing that the failure of the Department of Social Protection to provide a payment during surrogacy leave – equivalent to that provided during maternity and/or adoption leave – is in breach of the Acts. The High Court rejected the case on the basis that it was not open to a court to make a finding of unlawfulness in the Social Welfare Acts 2005-2015 on the basis of the policy of another Act (in this case the Equal Status Acts). Although the Court arrived at the correct outcome, the reasoning adopted for doing so is questionable in some respects. The note discusses the issues raised in the case and how they might have been addressed.

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