In November 2013 we reported on two conflicting Advocate General opinions on surrogacy rights. The cases of CD v ST (Case C-167/12) and Z v A Government Department and Board of Management of a Community School were referred to the Court of Justice of the European Union (CJEU) for consideration from the UK and Ireland respectively.
In CD v ST, the claimant had become a mother through a surrogacy arrangement and had obtained a Parental Order. The claimant began mothering and breastfeeding the baby within an hour of birth, but was denied maternity leave and adoption leave by her employers. Advocate General Kokott was of the view that the birth mother and surrogate mother should share the maternity leave entitlement granted by the Pregnant Workers Directive between them.
In Z v A Goverment Department and Board of Management of a Community School, the claimant travelled to America to make the necessary surrogacy arrangements as surrogacy is not regulated in Ireland. The claimant had a medical condition which meant she could not support a pregnancy. She had IVF treatment and her fertilised egg was implanted in the womb of a surrogate mother. The claimant and her partner were the biological and genetic parents of the baby. However Advocate General Wahl considered the aim of the Pregnant Workers Directive was to protect a woman’s biological condition in the vulnerable period before and after she actually gives birth. Therefore, according to the Advocate General in this case, the intended mother was not entitled to maternity leave.
On consideration of these cases and taking the opinions of the two Advocate Generals into account, the CJEU has determined that the Pregnant Workers Directive under EU law does not confer maternity rights on mothers who become parents through a surrogacy arrangement. This means that such mothers are not entitled to maternity or adoption leave under EU law.
However, in 2015 under the Children and Families Bill, the UK Government intends to introduce rights for surrogate parents. This will allow those who are eligible to apply for a Parental Order (a Parental Responsibility Order in Scotland) to take statutory adoption leave and flexible parental leave, providing they meet the other qualifying conditions. It is unlikely, given that the Children and Families Bill has recently been passed through Parliament, that the proposal to introduce rights for surrogate parents in the UK will be affected by the recent decision of the CJEU.