Surrogate Parents Entitled To Adoption Leave and Pay
Are Surrogate Parents Entitled To Adoption Leave and Pay? The issue of maternity rights for surrogate parents has recently caused confusion with two Advocates General to the Court of Justice of the European Union (‘CJEU’) giving conflicting guidance. Final rulings are expected from the CJEU in the first half of this year (2014). In the meantime, in this article we look at the differing opinions of the Court’s advisers.
Mother through surrogacy DOES have the right to paid maternity leave
In the case of C-D v S-T, Advocate General Juliane Kokott advised that a British woman who became a mother through a surrogacy arrangement was entitled to 14 weeks’ paid maternity leave (the period required by the Pregnant Workers’ Directive (‘PWD’). However, the Advocate General advised that this should not result in a doubling of maternity rights, meaning that the maternity leave must be shared with the woman who gave birth.
In reaching this decision, the Advocate-General indicated that the PWD has two objectives:
- firstly to protect the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding, and
- secondly to protect the special relationship between a woman and her child over the period following pregnancy and childbirth.
It was on account of the second of these objectives that Advocate General Kokott concluded that protection extends to an intended mother through surrogacy (regardless of whether she intends to breastfeed).
Interestingly, Advocate General Kokott’s view was that whilst a mother through surrogacy has a right to maternity leave, she is not discriminated against where her employer fails to grant this leave. This is because the intended mother cannot rely on the birth mother’s pregnancy for the purposes of pregnancy discrimination, and nor can she compare herself to a male colleague to show detrimental treatment because of sex, since the reason for any difference in treatment is not sex but ‘having a child through surrogacy.’ Furthermore, this Advocate General stated that unfavourable treatment because of maternity leave only arises where a mother has been on a maternity leave and suffers detriment as a result, it does not arise before such leave is taken.
Mother through surrogacy DOES NOT have the right to paid maternity leave
In contrast, in Z v A Government Department and the Board of Management of a Community School, a case referred from the Irish courts, Advocate General Nils Wahl advised that an intended mother through surrogacy did not qualify for paid maternity leave. Advocate General Wahl stated that the right to 14 weeks paid maternity leave is intended to protect a woman’s biological condition after she has given birth. To the extent that leave is also intended to protect the special relationship between a woman and her child following pregnancy and childbirth, this Advocate General was of the view that this protection was linked to childbirth and breastfeeding, rather than any broader desire to protect the relationship specifically between a mother and her child. In his view, therefore, the PWD should not be interpreted to grant rights to women who become mothers through surrogacy, rather than through giving birth themselves.
The conflict and its significance
The conflicting opinions of the Advocates General highlight the complexity of EU discrimination law in this area.
Whilst neither opinion is binding on the CJEU, if Advocate General Kokott’s recommendations are followed, this would be the first time that women who become mothers through surrogacy are granted the same rights as biological mothers.
However, the cases also have a broader significance, raising fundamental questions about the concept of motherhood and the purpose of maternity protection legislation. In many ways the opinion given in the case of C-D appears to be based on a traditional view of the role of women as carers. Although the approach may appear, on its face, to advance the rights of mothers through surrogacy, it could be seen as perpetuating a traditional distribution of the roles of men and women, given that there can be no doubt that rights under the PWD do not apply to fathers. This approach seems to run contrary to recent CJEU decisions, in particular the decision in the case of Roca Alvarez , which appeared to recognise that confining certain rights to mothers may, in practice, disadvantage both men and women. This seems to have been recognised by Advocate General Wahl, who suggested that it would be inappropriate to grant special leave to intended mothers through surrogacy, without also extending that leave to any male parent who takes care of his or her new-born child.
Ultimately, the CJEU’s final decision may depend on whether the position is judged by focusing on the PWD as a health and safety measure or, more broadly, supporting the bond and relationship between a new born and new mother (whether birth mother or a mother through surrogacy).
The position in the UK
In the UK, adoptive parents are granted the same rights as biological parents in respect of paid leave after becoming parents. The UK Government intends to extend these rights to people who become parents through surrogacy, with new legislation expected in 2015, contained in the Children & Families Bill.
Quite apart from the issue of surrogacy, the CJEU’s eventual decisions could also have an impact on broader issues relating to parental leave. In particular, whatever the CJEU decides could have a knock-on effect on the rights of fathers. This will be of particular interest in the UK with the introduction of shared parental leave and the tricky questions that will arise about whether fathers taking shared parental leave should be entitled to the same benefits as a mother who takes maternity leave. The principles which the CJEU will explore will be very likely to have relevance not just to surrogates but to fathers also.
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