Brussels, 27/09/2013 (Agence Europe) - European Court of Justice general advocate judges Nils Wahl and Juliane Kokott took opposing views on Thursday 26 September on similar cases on maternity leave for a woman who had got a surrogate mother to have a baby for her for money.
Wahl said that surrogate mothers are not entitled to maternity rights under current EU legislation, whereas Kokott says that maternity leave of at least fourteen weeks must be shared between the mother who gave birth and the woman for whom she gave birth (who will be looking after the child). The Court of Justice should make clear what rights surrogate mothers and women making use of surrogate mothers are to have because such rights are not uniform across the EU.
In Case C-363/12 examined by Wahl, an Irish teacher who does not have ovaries arranged for a surrogate mother in California to give birth to a child for them, but Irish legislation does not grant the right to maternity leave for a child borne by a surrogate mother. The teacher complained on the grounds that she was suffering from discrimination on the grounds of sex, family situation and disability and the Irish Equality Tribunal asked the Court whether the decision complied with the EU Charter of Fundamental Rights and the EU directives on equal treatment of men and women (2006/54/EC) and equal treatment at work and in terms of employment (2000/78/EEC).
In Case C-167/12 examined by Kokott, a woman and her partner got full legal and permanent responsibility for a child with the approval of the surrogate mother, but the former's public service employer said she was not entitled to paid maternity or adoption leave as she did not give birth to or adopt a child. The British court to which she appealed asked the Court of Justice whether, under the EU Directive on pregnant women (92/85/EEC), a woman is entitled to paid maternity leave where it is not she herself but a surrogate mother who has given birth to a child.
In the first case, Wahl says that the woman had not been subject to any prohibited discrimination on the grounds of sex (Directive 2006/54/EC because the father of a surrogate child would be treated in the same way), or on the grounds of disability (the fact that she could not have children did not prevent her from fully participating in professional life). He says her case is different from that of a pregnant woman because she did not give birth to a child herself so Directive 92/85/EEC on pregnant workers (given them the right to at least 14 weeks paid maternity leave to protect them when they are especially vulnerable physically) does not apply. Member states, he points out, have not yet passed legislation harmonising the right to paid leave of absence for adoptive parents and therefore any discrimination against adoptive parents, if applicable in this case, would have to be examined by the court in Ireland.
Kokott takes a different view. She says that an intended mother who has a baby through a surrogacy arrangement has the right to receive maternity leave provided for under EU law after the birth of the child in any event where she takes the child into her care following birth, surrogacy is permitted in the member state concerned, and its national requirements are satisfied. This also applies where the intended mother does not breastfeed the child following birth. She says that even though EU Directive 92/85/EEC only covers biological mothers, the protection of maternity leave is a fundamental right and grants protection to the mother who arranged for the child, whether or not she actually breastfeeds the child. The objective of protection of maternity leave, which is enshrined as a fundamental right, also however demands the protection of the intended mother, irrespective of whether or not she breastfeeds the child and should ensure time for peaceful bonding of the woman and the child. Kokott states: “With regards to the length of maternity leave, Advocate General Kokott is of the view that the concept of surrogacy cannot result in a doubling of the minimum leave entitlement of 14 weeks. Rather, the division of roles chosen by the women concerned must be reflected in the maternity leave. Consequently, the leave already taken by the surrogate mother must be deducted from that of the intended mother, and vice versa. However the compulsory maternity leave of at least two weeks must be granted to both women in full. With regards to these two weeks the EU rules in the form of a directive are so precise that they are directly effective in member states.”
The Court of Justice rulings in these cases are expected in the next few months and will make it clear which of these two approaches the Court takes. (FG/transl.fl)