Maternity leave for surrogacy mothers uncertain

An Irish teacher who had a baby by a surrogate in California is suing the State and her school because she was refused maternity leave — but a legal opinion from the European Court of Justice did not offer her support.

However, a British woman bringing a similar case to the Luxembourg-based court was told in a legal opinion written by a different lawyer of the court that she and her surrogate were entitled to maternity leave, and to share it between them.

The case led to calls for surrogacy to be banned in Ireland while others called for maternity benefits to be extended to adoptive parents and parents by surrogacy.

The Irish teacher, known only as Ms Z, suffers from a rare condition in that she has no uterus but has healthy ovaries. She and her husband arranged for a woman in California to give birth to their child.

The baby is the genetic child of the couple and their names are on the American birth certificate. When she was refused paid maternity leave she complained to the Equality Tribunal that she was discriminated against on the grounds of sex, family status, and disability.

In the legal opinion, an advocate general of the court, Nils Wahl, said the EU’s Pregnant Workers Directive only applies to women who have given birth. He said the decision to refuse her leave was not discrimination on the basis of gender as a man in the same situation would also be refused parental leave. She had no case on the grounds of disability since in her inability to have a baby did not prevent her working.

If adoptive parents were entitled to maternity leave under EU law, then the national courts could assess whether it was illegal to apply different rules to adoptive parents and those involved in a surrogacy arrangement. The court usually follows the advocate general’s opinion though not always.

The Iona Institute, which describes itself as “pro-marriage, pro-family”, called for surrogacy and egg donation to be outlawed in Ireland as it is in many countries, including France, Germany, and Italy.

It described surrogacy as “an emotional and legal minefield for all concerned and particularly for the child”.

The Equality Authority — who referred the case to the European Court — said they advised the minister for justice and equality to provide support to the small number of families similar to that provided to adoptive parents.

However, a legal opinion from another advocate general of the court, Juliane Kokott, said that where surrogacy is allowed in a country, the mother taking charge of the baby was entitled to leave to ensure the “unhindered development of the mother-child relationship”.

When a country allows surrogacy, the EU law on maternity leave must be applied to the intended mothers who take the place of the surrogate mother immediately after birth, the opinion said. The leave should be a minimum of two weeks for each.