Legal uncertainty around the issue of surrogacy was revealed yesterday after the European Court of Justice said an Irish woman whose child was born through a surrogacy arrangement does not have the right to maternity or adoptive leave.
In a legal opinion from the advocate general, the Luxembourg court discounted the claims by the woman, known as Ms Z, that she had been discriminated against on the basis of gender and disability.
A final finding is expected in the next three to six months, after which the case will return to the Equality Tribunal. In the majority of cases, the court upholds the opinion of the advocate general.
The case related to an Irish teacher and her husband, whose child was born through a surrogate mother in California in April 2010. Although Ms Z has healthy ovaries and is otherwise fertile, she has no uterus and cannot support a pregnancy.
The woman’s application for paid maternity and adoptive leave was refused by her school and she brought the case to the Equality Tribunal, which then referred the case to the European Court of Justice. The court gives guidance to national courts on matters of EU law.
Yesterday’s opinion found the situation of Ms Z and her husband fell outside the scope of EU law. More specifically, the advocate general found the woman had not been discriminated against on the basis of sex and disability, as had been claimed.
According to the advocate general, the differential treatment of which Ms Z complained was not based on sex, but on the refusal of national authorities to equate her situation with that of either a woman who has given birth, or an adoptive mother.
In terms of adoption, the advocate general noted that member states had not yet passed legislation harmonising the right to leave of absence for adoptive parents.
“Accordingly, where national law foresees the possibility of paid adoption leave, the national court ought to assess whether the application of differing rules to adoptive parents and to parents who have had a child through a surrogacy arrangement constitutes prohibited discrimination, contrary to that national law,” the opinion states.
As regards the grounds of disability, the advocate general noted the provisions prohibiting discrimination based on disability seek to ensure full and effective participation in professional life. Because Ms Z was not prevented from such participation due to her inability to carry a pregnancy, the EU legislation was not applicable, it found.
However, a legal opinion on a separate case brought by a British woman also published yesterday said an intended mother who has a baby through a surrogacy arrangement has the right to receive maternity leave provided for under EU law in the event that she takes the child into her care following birth, surrogacy is permitted in the member state concerned and its national requirements are satisfied.
In relation to the case relating to the woman known as CD, the advocate general said the maternity leave should be divided between the woman and the surrogate mother. Both the surrogate mother and the intended mother should be given at least two weeks of paid leave each, the opinion said.
The two legal opinions indicate the legal uncertainties around the issue of surrogacy in EU law. The legal complexities surrounding surrogacy also surfaced in the Irish courts earlier this year when the High Court ruled that the genetic mother of twins born to a surrogate mother was entitled to be registered as their mother on their birth certificates. The State is appealing the decision to the Supreme Court.
