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The first of the above mentioned cases was an Irish case, Z v A Government Department and the Board of Management of a Community School (C-363/12). In said case Ms Z applied for adoptive leave but was refused same since there is no express provision in Irish legislation for leave arising from the birth of a child through a surrogacy arrangement and instead she was offered unpaid parental leave. Ms Z then proceeded to take a claim under the Employment Equality Acts 1998-2011 alleging that she had been discriminated against on the grounds of sex and disability arising from her inability to give birth. The Equality Tribunal then proceeded to refer the case to the CJEU, asking the Court whether the refusal to grant the woman paid leave from employment constituted a breach of EU anti-discrimination rules. In particular the Court was asked the specific question of whether the mother was discriminated against on the grounds of sex or disability under the Employment Equality legislation. In this regard Advocate General Wahl was of the view that the mother had not been discriminated against on the grounds of sex because any male parent of a child born through a surrogate would not be entitled to leave either and further that the mother was not discriminated against on the grounds of disability (being her inability to carry a child) as that disability did not impede her full and effective participation in her professional life. The Advocate General further stated that the differential treatment of the mother was as a result of the failure of national authorities “to equate her situation with that of either a woman who has given birth, or an adoptive mother” and he outlined that the failure of member states to align adoptive leave entitlements meant that she could not benefit from same. Of note from an Irish perspective though is the fact that the Advocate General went on to opine that where a member state allows for paid adoptive leave then it should be considered whether the application of differing rules to adoptive parents and to parents who have a child through a surrogacy arrangement constitutes discrimination.

The second case in which an opinion was issued by the CJEU was a case which originated in the UK, CD v ST (C-167/12). This case came about after a woman who had a child through a surrogacy arrangement initiated legal proceedings after she was refused maternity and adoptive leave. In this case the CJEU were asked the specific question as to whether the Maternity Directive (1992/85/EC) covers mothers of children born through a surrogacy arrangement. In answering the aforementioned question, Advocate General Kokott opined that a mother who has a child through a surrogacy arrangement has a right to receive maternity leave as provided for under EU Law. Interestingly it appears from the opinion of the Advocate General that the leave would have to be shared between the mother and the surrogate.

The opinions of Advocate General are not binding on the Court but in the majority of cases they are followed by the Court. It will be a number of months before the CJEU delivers decisions which will be keenly awaited given the apparent divergence in the above mentioned Advocate General opinions.

Legal Commentary

From an Irish perspective there are a number of issues that can be gleamed from the above. In the first instance, it is unclear as to whether mothers whose children are born through a surrogacy arrangement are entitled to maternity leave. It would appear from the decision in the Z Case that there is no entitlement in this regard but it must be borne in mind that the specific question as to whether the Maternity Directive (1992/85/EC) covers mothers of children born through a surrogacy arrangement was not asked. It seems likely that if the aforementioned question was referred by the Irish Courts that the line of reasoning applied in CD v ST would be followed.

With regard adoptive leave, the current position is that mothers whose children are born through a surrogacy arrangement have no entitlement to same as the legislation as it is drafted allows only mothers who are not “natural mothers” to benefit and thus excludes surrogate mothers. According to the opinion in the Z Case there is nothing in EU Law that entitles a mother whose child is born through surrogacy to adoptive leave. However and in light of the comments of Advocate General Wahl regarding member states such as Ireland which allow for paid adoptive leave and that it should be considered whether differing rules pertaining to adoptive leave constitutes discrimination, it seems likely that the Irish Courts will have to reassess this case in light of said comments.

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