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Mixed messages on surrogacy maternity leave from European court

30 September 2013
Appeared in BioNews 724

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.

European court gives opinion against Irish woman in surrogacy case
The Irish Times |  26 September 2013
Intended and birth mother in surrogacy entitled to maternity leave, says ECJ
The Guardian |  26 September 2013
Irishwoman ‘not entitled to paid adoptive leave’
Irish Independent |  26 September 2013
Surrogacy mother wins maternity leave ruling in EU court
Independent |  26 September 2013
Surrogate Births Stir Divisions in EU
Wall Street Journal |  26 September 2013
26 January 2015 - by Merry Varney 
The UK Government has finally changed the law to allow parents of children born through surrogacy the same rights to leave and pay as other parents. However, rather than bring the new law into effect immediately, the Government has only applied it to babies 'whose expected week of birth begins on or after 5th April 2015'. This presents some problems...
24 March 2014 - by Chee Hoe Low 
Women using surrogacy to become mothers are not entitled to maternity or adoption leave under European Union law, the European Court of Justice has ruled....
9 December 2013 - by Antony Starza-Allen 
A woman in Ireland whose child was born through surrogacy is challenging the Government's refusal to pay her maternity leave, alleging that it amounts to unlawful discrimination, reports the Irish Times...
10 December 2012 - by Sabreena Mahroof 
'…and naturally you realise you will not be entitled to Maternity leave….'...
23 April 2012 - by Dr Lux Fatimathas 
Former shadow health secretary Mr John Healey has called for mothers of children conceived using a surrogate to be given equal maternity pay, leave and rights as other mothers. Currently mothers who use surrogates are entitled to 13 weeks unpaid leave, in contrast to mothers who adopt or conceive themselves, who are entitled to 52 weeks leave with 39 weeks maternity pay....
19 September 2011 - by Nishat Hyder 
A US businesswoman is suing her employer after she was allegedly denied maternity leave following the birth of her twins through a surrogate mother...
29 October 2009 - by Nishat Hyder 
Following new UK government guidelines on surrogacy published last month aimed at improving the rights of surrogacy patients, Ministers are now facing a new legal challenge calling for further changes in the law....
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