A woman whose child was born as a result of a surrogacy is challenging the State's refusal to pay her maternity benefit.

The woman has brought a High Court action claiming the refusal to pay the maternity benefit amounts to unlawful discrimination. 

Her case is being supported by the Equality Authority.

The court was told the woman had to have an emergency hysterectomy a number of years ago after becoming seriously ill with cancer.

She and her husband wanted children and entered into an arrangement with a surrogate who agreed to be implanted with their genetic material which had been fertilised via IVF treatment.

The surrogate gave birth to the couple's daughter in a US state. 

The couple were registered on the child's birth certificate there as her legal and biological parents.

The woman's employer agreed she could take maternity leave.

The woman applied to the Department of Social Protection for the State allowance as her employer did not pay maternity benefit.

She was refused on the grounds she was not eligible.

The woman brought a complaint under the Equal Status Act to the Equality Tribunal.   

The tribunal and the circuit court rejected her complaint and she took High Court proceedings against the Minister for Social Protection.

Her senior counsel, Nuala Butler, told the court the woman was entitled to benefit because she was in the same position as any other mother who had given birth to, or adopted, a child and who wanted time to bond with that child.

She said the woman was being discriminated against on grounds of her family status, disability, and gender. 

The woman was in a comparative position to other mothers but was treated differently from them, she said.

Senior counsel for the minister, Gerard Durcan, said the claim related to the provision of a service. 

He said the woman had failed to make a case she was being treated less favourably than others in a position similar to her.

The case is continuing.