Divergence On Surrogacy At The Court Of Justice Of The European Union

Author:Mr Bryan Dunne
Profession:Matheson
 
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On Thursday 26 September, the Court of Justice of the European Union ("CJEU") released legal opinions on two recent cases regarding leave entitlements for women who had children via a surrogate mother. Both women argued that they had equal rights to women who actually gave birth. The rulings are the first time the Court has issued an opinion on whether the right to receive maternity leave under the EU Pregnant Workers Directive (1992) extends to mothers who have had a baby via a surrogacy.

In Z v A Government Department and the Board of Management of a Community School (C-363/12), Ms Z applied to her school for adoptive leave but was refused paid leave of absence since there is no express provision in Irish legislation for leave arising from the birth of a child through a surrogacy arrangement She was offered only unpaid parental leave. Ms Z brought a case before the Equality Tribunal in Ireland, arguing that she had been subject to discrimination on grounds of sex, family status and disability arising from her inability to give birth. The Equality Tribunal subsequently referred the case to the CJEU, asking the Court whether the refusal to grant the woman paid leave from employment constituted a breach of EU anti-discrimination rules.

In his Opinion, Advocate General Nils Wahl distinguished the case from the situation of a pregnant worker falling under the scope of the Pregnant Workers Directive which provides for maternity leave of at least 14 weeks in order for a woman to recover from childbirth and take care of her newborn. According to the Advocate General, the differential treatment at the expense of the woman was neither based on sex nor on disability, but rather on the refusal of national authorities "to equate her situation with that of either a woman who has given birth, or an adoptive mother". He outlined that she could not benefit from the rights of an adoptive mother because EU member states had not yet harmonised the right to paid leave for adoptions. Advocate General Wahl also added that where national law foresees the possibility of paid adoptive leave, the national court should assess whether the application of differing rules to adoptive parents and to parents who have a child through a surrogacy arrangement constitutes prohibited discrimination contrary to that national law.

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