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Friday, July 12, 2024 | Back issues
Courthouse News Service Courthouse News Service

Mothers Via Surrogate Trip in Battle for Leave

(CN) - Maternity leave benefits are not available to women who have their children through surrogates, Europe's highest court ruled Tuesday.

C.D. and her partner contracted with a surrogate in England to have a baby using the partner's sperm but no egg from C.D. Since surrogacy is legal in the United Kingdom, 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 count as either maternity or adoption under EU law. Last year, two advisers to the court held that the issue should be left up to each member state since EU law doesn't address surrogacy at all.

In a pair of judgments delivered Tuesday, the Luxembourg-based high court agreed, noting that union law establishes minimum guidelines to protect the health of the biological mother and the child, and that member states are free to expand on these guidelines if they wish. The justices rejected arguments made by both women that they're treated less favorably than biological mothers.

"A commissioning mother who has had a baby through a surrogacy arrangement cannot, by definition, be subject to less favorable treatment related to her pregnancy, given that she has not been pregnant with that baby," the court wrote.

As for Ms. Z, the court also declined to call her medical condition - having no uterus to support a pregnancy - a disability according to EU law, since her particular ailment wouldn't impede her ability to advance in her chosen profession.

"As the advocate general stated, the inability to have a child by conventional means does not in itself, in principle, prevent the commissioning mother from having access to, participating in or advancing in employment," the court wrote. "In the present case, it is not apparent from the order for reference that Ms. Z's condition by itself made it impossible for her to carry out her work or constituted a hindrance to the exercise of her professional activity.

"In those circumstances, it must be held that Ms. Z's condition does not constitute a 'disability' within the meaning of EU law," the court continued. "The fact that the commissioning mother has been responsible for the care of the child from birth is not such as to call that finding into question."

The Court of Justice handed both cases back to the national courts for a final resolution.

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