Uncertainty in EU law over the issue of surrogacy and the right to paid maternity leave deepened this week after expert advisors to the Court of Justice of the European Union (CJEU) gave opposing recommendations on separate but similar cases.
In his advice to the CJEU, advocate general Nils Wahl wrote that a woman who becomes 'a mother without enduring the physical and mental effects of pregnancy and childbirth' does not automatically qualify under current EU law for paid maternity leave. He was commenting on the case of a women from Ireland, 'Ms Z', whose child was carried by a surrogate mother from California.
In another case, advocate general Juliane Kokott, advising on the case of 'C.D.', a British woman who worked for the NHS, stated that maternity leave was 'intended to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth'. She recommended that new mothers split the 14 weeks of paid maternity leave provided by EU law with their surrogate and they each receive a minimum of two weeks.
An opinion from an advocate general is not binding on the CJEU, but in the majority of cases the Court follows their advice. If the CJEU chooses to uphold the recommendations of Ms Kokott, it would be the first-time that non-biological mothers would be offered the same protection as birth mothers in EU law.
In the UK, adoptive parents are already entitled to receive statutory adoptive pay and leave, which is similar to that offered to birth mothers, and ministers have signalled a legislative move to extend this to families that use a surrogate by 2015 (reported in BioNews 683). In his statement, Mr Wahl urged other EU countries with 'paid adoption leave' to consider a similar move or risk possible claims of 'discrimination'.
These two cases have highlighted the complexity and lack of consistency of EU laws that affect those involved in surrogacy. 'Law is not keeping up with life', Marian Bloodworth, a partner at law firm Berwin Leighton Paisner, told the Wall Street Journal. 'Everyone will now watch with great interest which way the court will go'.
The final decisions on both cases are expected within the next six months.