Divergence on surrogacy at EU court - Daily Nation

Divergence on surrogacy at EU court

Monday September 30 2013

Pregnant woman lying on an examination table, awaiting a consultation

Pregnant woman lying on an examination table, awaiting a consultation. Photo/FILE 

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The European Court of Justice issued contradictory opinions Thursday on a woman's right to maternity leave should her baby be born to a surrogate mother -- one favouring paid leave, the other not.

In ruling on the case of a British woman identified only as C.D., advocate general Juliane Kokott decided that "an intended mother who has a baby through a surrogacy arrangement has the right to receive maternity leave provided for under EU law."

European Union rules set in 1992 provide for paid leave -- now at 14 weeks -- but take only biological motherhood as the norm.

Kokott said that as long as surrogacy was permitted in a country, a woman assuming responsibility for a baby after its birth -- the intended mother -- was entitled to maternity leave and whether or not she breastfed the child.

Both the surrogate mother and the intended mother must be given at least two weeks of paid leave each, Kokott said.


The remaining 10 weeks of the EU's required 14 must be shared between the two, taking into account the protection of "the woman who has recently given birth and the child's best interests."

But in a separate case also involving a request for maternity leave from an intended mother, advocate general Nils Wahl took a different view.

The ECJ was asked for its opinion by Ireland's Equality Tribunal after a teacher known as Ms Z was refused paid leave of absence after the birth of a child through a surrogacy arrangement.

She complained that she had been subject to discrimination on grounds of sex, family status and disability -- the last because she has no uterus and cannot support a pregnancy.

But Wahl rejected the claim, saying "Ms Z has not been subject to any prohibited discrimination on grounds of sex."

He said the differential treatment was based on the refusal by authorities "to equate her situation with that of either a woman who has given birth, or an adoptive mother."

He also added 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.

The opinions by the advocate generals are not binding on the court but it more often than not follows the advice in its final rulings.