Case update - ECJ ruling on surrogacy arrangements
The European Court of Justice has held that a commissioning mother, who receives a child via a surrogacy arrangement, does not have the right to maternity leave.
The court stated that the primary purpose of maternity leave is to protect the health of the mother who is deemed “vulnerable” whilst pregnant and following childbirth. This vulnerability does not apply to women who use surrogates. Although maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, that objective concerns only the period after a woman's pregnancy and childbirth and is not the primary objective.
In the recent cases of CD v ST C – 167/12 and Z v A Government Department and the Board of Management of a Community School C – 363/12 it was held that mothers who use surrogates to bear their children are not entitled to maternity leave under EU law. It was held that this was not discriminatory on grounds of sex as a male parent receiving a child via a surrogate would also not be entitled to any paid leave. Further, a disability argument advanced by a woman who did not have a uterus and was, therefore, unable to support a pregnancy failed. The court did not accept that her condition hindered her “full and effective participation in professional life” and thus did not amount to a disability.
Posted on 04/27/2014 by Ortolan
