EU Court Urged to Punt Surrogacy Leave Issue

     (CN) – National law – not EU law – must determine the right of maternity leave for mothers whose children are born to surrogates, advisers to the EU high court held Thursday.
     United Kingdom residents C.D. and her partner contracted with a surrogate to have a baby using the partner’s sperm but no egg from C.D. Since surrogacy is legal in the U.K., a British court granted the pair full and permanent responsibility for the child.
     C.D.’s employer nevertheless refused to grant her maternity leave on grounds that she had neither given birth to nor adopted the child. C.D. sued in a British court, arguing that she had a right to parental leave as a new mother regardless of how or to whom the birth occurred.
     Meanwhile in Ireland, schoolteacher Ms. Z and her husband arranged for a surrogate in California to give birth to their child. In their case, the child is genetically theirs – Ms. Z suffers from a rare condition that left her with no uterus to support a pregnancy but has healthy ovaries and is otherwise fertile.
     Like C.D., Ms. Z’s employer refused to grant her maternity leave. As in the U.K., Ireland has no provision for leave arising from a surrogacy arrangement, and Ms. Z sued for sex, family status and disability discrimination.
     Both courts referred the matter to the Court of Justice of the European Union, asking whether surrogacy arrangements constitute either maternity or adoption under EU law. And in a pair of opinions issued Thursday, Advocates General Juliane Kokott and Nils Wahl both noted that EU law does not address the issue of surrogacy at all – leaving the matter to up to each individual member state.
     In the case of C.D., she is entitled to leave since British law recognizes her as an “intended mother,” Kokott held. C.D. must share the 14 weeks of leave time, however, with her surrogate, according to the opinion.
     “Before the birth only the surrogate mother can have a right to maternity leave as a pregnant worker,” Kokott wrote. “After the birth the right extends to the surrogate mother, as a woman who has recently given birth and the intended mother where she takes the child into her care after it is born.”
     How the time is divided should be up to the women in question, the adviser said.
     “It not possible to determine in detail from the objectives and scheme of EU law the extent to which each woman has a right to leave, in particular whether the maternity leave is to be divided between them equally and what procedure is to be followed where it is not possible to reach agreement between them, but parameters to be taken into account in that regard may be inferred from the objectives and scheme of law,” Kokott wrote. “The division of the maternity leave must in any event take account of the interests protected by that directive. Before the birth, the protection of the pregnant woman and, after the birth, protection of the woman who has recently given birth and the child’s best interests are the main criteria. Any agreed division of the maternity leave – which in particular may not be detrimental to the child’s best interests – must take account of these legally protected interests.”
     For Ms. Z, however, adviser Wahl took a different tack – dismissing her claims of sex and disability discrimination outright.
     “The differential treatment of which Ms. Z complains is not based on sex, but on the refusal of national authorities to equate the situation of a commissioning mother with that of either a woman who has given birth or an adoptive mother,” Wahl wrote. “In fact, it appears that a male parent of a child born through surrogacy would be treated in exactly the same manner as Ms. Z in a comparable situation: it must be assumed that, in common with a female commissioning parent, he would not be entitled to paid leave of absence equivalent to maternity or adoption leave. In my view, to construe EU law as precluding the refusal to grant paid leave of absence to a woman undertaking surrogacy would itself be contrary to the principle of equal treatment. Such a construction would have the contradictory effect of discriminating against men who become parents and who take full care of a child. In my view, a distinction between sexes which does not relate to the specific physical and mental constraints of carrying and giving birth to a child would additionally entail a value judgment as to the qualitative difference between motherhood as opposed to parenthood in general.”
     Wahl also declined to call Ms. Z “disabled” within the scope of EU law, despite her medical condition that led to the need for surrogacy in the first place.
     “As profoundly unjust as the inability to have a child by conventional means may be for a person who wishes to have a child of his or her own, I cannot interpret the existing EU legislative framework as covering situations which are not linked to the capacity of the person concerned to work,” the adviser wrote. “In my view, in order for a limitation to fall within the scope of that directive, an interrelationship must be established between that limitation and the capacity of the person concerned to work. That link appears to be missing in circumstances such as those of the case before the referring court. It does not appear from the case-file that the limitation from which Ms. Z suffers would have prevented her from participating in professional life.”
     He concluded: “Notwithstanding the conclusion I have reached above, I have considerable sympathy with the difficulties that commissioning parents undoubtedly face because of the legal uncertainty surrounding surrogacy arrangements in a number of member states. However, I do not believe that it is for the court to substitute itself for the legislature by engaging in constructive interpretation that would involve reading into EU directives something that is simply not there. That, in my view, would amount to encroaching upon the legislative prerogative.”
     The Luxembourg-based high court is not bound by the advisers’ opinions, and has begun its own deliberations in the cases.

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