In autumn, this year, Advocates of the Court of Justice of the European Union issued two Opinions dealing with the issue of leave entitlements for women who have children via a surrogacy arrangement. The women in both cases argued that they had equal rights, under the EU Pregnant Workers Directive (1992), to women who physically gave birth to their children.
Z –v– A Government Department and the Board of Management of a Community School (C-363/12)
The Applicant in this case was a teacher who was living in Ireland and sought adoptive leave on the arrival of her child, who was born via a surrogacy arrangement. She was refused paid leave as there is no express legislative provision in Ireland for the scenario arising from the birth of a child through a surrogacy arrangement. The Applicant was offered only unpaid parental leave and so a case was brought before the Equality Tribunal and it was argued on her behalf that she had been discriminated against on grounds of sex, family status and disability arising out of her inability to physically give birth. The Equality Tribunal referred the case to the Court of Justice of the European Union and questioned if the refusal to grant the woman paid leave amounted to a breach of EU anti-discrimination rules.
Advocate General Nils Wahl in his Opinion distinguished the worker in this case from a pregnant worker within the scope of the Pregnant Worker’s Directive (1992). This Directive provides for maternity leave of 14 weeks to allow women to recover from the physical aspects of childbirth. Accordingly he held that mothers via surrogacy arrangements are not covered by the aforementioned Directive. It was his Opinion that the differential treatment, to the detriment of the Applicant, was not based on sex or on disability, but was based on the refusal of the authorities of the Member State to equate her position to that of a woman who has given birth or an adoptive mother. The Advocate General said that where the law of a Member State foresees the possibility of paid adoptive leave, the national court should assess whether the application of differing rules to parents via a surrogacy arrangement constitutes discrimination under national law. The matter is now for the Irish Courts to re-assess in light of Irish law. It is worth noting that at present the adoptive mother or sole adoptive father is entitled to 24 weeks paid adoptive leave in Ireland.
CD v ST (C-167/12)
This case involved a woman living in the UK who was denied paid maternity leave due to the fact that her child was born via a surrogacy arrangement. There is at present no legislation concerning maternity cover for the commissioning mother in the UK. Again a case was pursued to the Court of Justice of the European Union seeking relief under the Pregnant Worker’s Directive (1992). Advocate General Juliane Kokott held that the commissioning mother is entitled to avail of maternity leave provided for under EU Law. The Advocate General did however note that the leave which the commissioning mother is intended to avail of must have the maternity leave of the surrogate mother deducted from it. In any event it was held that both the commissioning mother and the carrier are entitled to a minimum of two weeks leave each, the remaining 10 weeks of the EU’s required 14 to be shared between the two women, taking into account the child’s best interest.
Both the above judgments were given on the same day and highlight the growing need for certainty in law around the area of surrogacy at both a national and a European level. The current uncertainty hinders the exercise of the Human Rights of parties involved in surrogacy arrangements as they are unsure as to their legal entitlements.
- Suzanne Dowling, Associate Solicitor
29 November 2013