No leave for mother who used surrogate
She and her husband are the baby’s full genetic parents but, because she did not have a womb, they commissioned a woman in California to carry their baby.
But when she returned home with the baby, she was refused paid maternity leave and appealed to the Equality Authority on the basis that had she given birth or adopted the baby, she would have been entitled to leave.
The court said that EU law did not say that a mother who has a baby through surrogacy is entitled to maternity leave or its equivalent. The judges said that the objective of the law is to improve health and safety for pregnant workers and for those who have recently given birth or are breastfeeding, and to protect mothers who are vulnerable because of pregnancy.
The court acknowledged that maternity leave was also intended to ensure that the special relationship between a woman and her child is protected, that relates specifically to the period after “pregnancy and childbirth”. “It follows from this that the grant of maternity leave pursuant to the directive presupposes that the worker concerned has been pregnant and has given birth to a child. Therefore, a commissioning mother who has used a surrogate mother in order to have a child does not fall within the scope of the directive, even in circumstances where she may breastfeed the baby.”
EU member states can extend the law to cover mothers who have babies through surrogacy, which is being legislated for in Britain.
The woman, known as Ms Z, claims that the refusal discriminated against her on grounds of gender, but this was also rejected on the grounds that a father using a surrogate did not have parental leave rights either.
She had no case on the grounds of disability, since her inability to have a baby did not prevent her working and it was up to the member state whether to grant leave to adoptive parents.
Justice Minister Alan Shatter’s Children and Family Relationships Bill is currently going through the Oireachtas and is expected to extend the current limited understanding of parenthood.
A British woman, known as Ms D, brought a similar case and also failed to win paid maternity leave. The baby was conceived using her partner’s sperm and another woman’s egg and carried by a surrogate. A British court granted her and her partner full and permanent parental responsibility for the baby in line with British legislation on surrogacy.
