The Supreme Court has overturned a first-instance ruling that had found in favour of a woman who was claiming maternity allowance after having a child through a surrogate mother. The court ultimately ruled that, under the particular circumstances of the case, annulling the administrative act would not have offered her any practical benefit.
The case concerned an application submitted by the respondent to the Social Insurance Services in September 2016, ahead of the expected birth of a child through a surrogate mother abroad. The child was born in December of the same year.
However, Article 29 of the Social Insurance Law in force at the time provided a right to maternity allowance only for insured women who were pregnant or had adopted a child up to the age of 12. There was no provision for cases of surrogacy, and as a result the application was rejected.
The woman appealed to the Administrative Court, arguing that, under the 2015 Law on the Application of Medically Assisted Reproduction, she had become the child’s legal mother and was therefore entitled to equal treatment with any other insured mother. She cited a violation of the constitutional principle of equality, as well as international conventions protecting children’s rights and human rights.
The first-instance court accepted this position, ruling that Article 29 of the Social Insurance Law violated Article 28 of the Constitution on equal treatment. It also noted that the 2015 law on medically assisted reproduction expressly recognised as the child’s parents the couple seeking to have a child through surrogacy.
The Republic filed an appeal, arguing that the first-instance ruling was wrong, as the court could not, in effect, add new categories of beneficiaries to legislation that did not provide for them. It also raised an objection on the grounds of futility, arguing that even if the administrative act were annulled, the respondent would still not acquire a right to the allowance.
In examining the appeal, the Supreme Court focused on one crucial factor: at the time of the child’s birth, key provisions of the surrogacy law had been suspended. Specifically, the competent Council that would approve applications and promote the issuing of court orders for a lawful surrogacy procedure was not yet operational.
The respondent presented correspondence with the Health Ministry, according to which she had been given permission to continue a process that had already begun before the law was passed, citing financial commitments and treatments abroad that had already been scheduled.
The Supreme Court acknowledged that there had been administrative tolerance for the continuation of the process, but not that it had been brought within the regulatory framework of the 2015 law.
The ruling underlined that the child had essentially been born outside the framework provided by the surrogacy law. The Court noted that, at the material time, the relevant procedures had not only not been fully activated in law, but the law also expressly prohibited commercial surrogacy agreements.
Also considered decisive was the subsequent amendment of the Social Insurance Law in 2017, which introduced, for the first time, an express provision for the payment of maternity allowance to women who have a child through a surrogate mother.
However, the Supreme Court stressed that the legislature limited the right only to cases where the procedure had taken place “pursuant to the provisions” of the 2015 law, that is, through the institutional mechanism that came fully into force at a later stage.
On that reasoning, the Court concluded that even if the initial rejection of the application were annulled, the respondent would not be able to benefit, since her case did not fall under the subsequent legislative framework either.
Accordingly, it upheld the objection on the grounds of futility and overturned the first-instance ruling.
The appeal was allowed, the first-instance judgment was set aside, and the costs order was also annulled. Citing the “entirely special circumstances” of the case, the Supreme Court made no order for costs either at first instance or on appeal.
