ECJ issues opinion that woman who had child through surrogate not entitled to adoption leave

Thursday 26 September 2013 22.14
The case was referred to the European Court of Justice by the Equality Tribunal
The case was referred to the European Court of Justice by the Equality Tribunal

The European Court of Justice has issued a legal opinion that an Irish woman who had a child through a surrogacy arrangement had no automatic right under EU law to have the same maternity entitlements as those provided for couples who adopt children.

The opinion was issued this morning by Advocate General Nils Wahl.

He said the woman, a teacher referred to as Mrs Z, was not discriminated against on the grounds of gender or disability when the Department of Education refused to give her 14 weeks' paid adoptive leave.

The woman had brought the case to the Equality Tribunal, which then referred it on to the ECJ in Luxembourg.

The full judgment is expected in several months.

The Advocate General's opinion is reflected in the final judgment In around 80% of cases.

Mrs Z has a rare medical condition that prevents her supporting a pregnancy, even though she is fertile and her ovaries are healthy.

She and her husband arranged to have a child through a surrogate mother in California.

The pregnancy was brought about by in-vitro fertilisation and as such Mrs Z and her husband are the "genetic" parents of the child.

The child was born in April 2010. No mention of the surrogate mother is made on the child's US birth certificate.

The couple had claimed they were discriminated against on the grounds of gender, family status and disability when the department refused to extend the same maternity entitlements as those granted to couples who have adopted children.

They argued that Mrs Z should have been granted adoptive leave under the EU Pregnant Workers Directive.

However, Advocate General Wahl declared that the directive applied only to women who had actually given birth to a child and that it is aimed at "protecting those workers in their fragile physical state".

He also found the treatment she received at the hands of the authorities was not based on sex, but on the refusal to equate her situation with that of either a woman who has given birth, or of an adoptive mother.

He said that the male parent of a child born through a surrogacy arrangement would be treated in the same way, so therefore there was no discrimination based on sex.

The Advocate General said it was up to national courts to decide whether parents of children born to a surrogate mother should enjoy the same rights as those who have adopted children.

He also found that Mrs Z was not discriminated against under EU disability law, which he said was limited in scope and "seek to ensure full and effective participation in professional life by all".

In her case, he argued, the inability to carry a pregnancy to full term did not prevent her from such participation.

In March, Mr Justice Henry Abbott ruled in a landmark case in the High Court that genetic parents of surrogate children should be regarded as their legal parents.

That ruling has since been appealed by the State to the Supreme Court and it is expected to be ruled on early in 2014.

It is not yet clear what bearing today's opinion will have on that case.