Human Rights in Ireland welcomes this guest post from Dr Denise Amram. Denise is a qualified Italian solicitor and is currently a visiting postdoctoral researcher at the Sutherland School of Law, University College Dublin.
Surrogacy is a sensitive issue, involving ethical, sociological, medical, and legal issues. The growing interest in this form of assisted reproduction has not spared the rise of legal issues related to the recognition of rights to people undertaking surrogacy.
Last Thursday two different Opinions were delivered by two Advocates General (AG) of the Court of Justice of the European Union (CJEU) about the possibility for the intended mothers to access to maternity leave.
Both the Opinions may affect Court’s decisions respectively on Case C-363/12 and on the Case-167/12, and –consequently- EU Member States approaches on dealing with surrogacy matters and employment issues.
The first Opinion, delivered by AG Wahl, concerns an Irish woman (Z) who arranged for surrogacy because of a rare condition by which she could not support a pregnancy even if her ovaries were healthy. During the surrogate’s pregnancy, her employer granted her just the unpaid leave, refusing her the maternity one. She asked the Equality Tribunal to verify whether or not such refusal constitutes discrimination on grounds of sex, family status and disability.
The second Opinion, delivered by AG Kokkot, relates to a British woman (C.D.) who arranged for surrogacy and asked a maternity leave. Her request was firstly refused, and then granted by her employer. However, since C.D. intended to have a further child by a surrogate mother, she decided to claim against the original refusal of her application before the Employment Tribunal, complaining discrimination on the grounds of sex and/or pregnancy and motherhood.
Given the uncertainties of the legal framework on issues relating to surrogacy, motherhood and issues of discrimination, both the national bodies referred the issue to the Court of Justice of the European Union (CJEU). At the end of the public hearing, the AG delivers his/her opinion, including the legal analysis of the issue raised, where he/she suggests the response that the Court should be given.
Differences & Analogies between the two Opinions.
Apparently, the two AGs assumed opposite positions on the issue relating the possibility to grant the right to maternity leave to the intended mother who decided to undertake surrogacy.
As far as discrimination on the ground of sex is concerned, both Opinions firstly consider that the EU Law (and, in particularly, Dir. 92/85) aims by the mean of maternity leave at “protecting the health and safety of workers in a vulnerable condition”.
AG Wahl remarks that a woman undertaking surrogacy cannot be compared to “a woman who, after being pregnant and having endured the physical and mental constraints of pregnancy, gives birth to a child”. More properly, Z’ conditions could be compared to an adoptive mother who has not given a child, and has not suffered the mental and physical effects of pregnancy.
However, EU has no competence on ruling about adoptions leaves, since “it is for the Member States to determine whether or not to grant such a right to paternity and/or adoption leave and also to determine any conditions, other than dismissal and return to work, which are outside the scope of this Directive” (recital n. 27, Directive 2006/54).
For these reasons, AG Wahl concludes that the refusal to grant Z the maternity leave does not constitute discrimination.
Differently, AG Kokkot identifies “the protection of the special relationship between the mother and her child over the period which follows pregnancy and childbirth”, as one of the scopes of the Directive 92/85. According to this perspective, “in the initial stage this relationship should not suffer from the mother simultaneously pursuing employment”.
As a consequence, in a system (like UK) where surrogacy is accepted, the protection provided by the Directive should be split between the surrogate mother, who requires protection only as a pregnant worker (or woman who has recently given birth), and the intended mother, who has a child in her care.
This principle, linked to the more general best interest of the child, should be applied irrespective of whether or not the intended mother breastfeed her child. In fact, the right to maternity leave does not cease if the biological mother decides to bottle-feed. For this reason, it would be unreasonable to exclude the intended mother from the maternity leave on the basis of the way in which the child is fed.
Moreover, Kokkot remarks that, as far as the duration of the maternity leaving is concerned, the Article 8 (2) of the mentioned Directive grants at least 2 weeks. This means that this term should be entirely granted to both the surrogate and the intended mother.
Despite the appearances, both the illustrated analysis share some interesting profiles, which may lead to a harmonized position of the CJEU.
We may argue that both Advocates agree that surrogacy is a legislative prerogative: in fact, Kokott’s Opinion is based on the condition that the MS accepts the surrogacy, while different issues may arise in case “of cross-border situations in which the law of the intended mother’s country of origin accepts the concept of surrogacy but the law in force at her place of employment does not”.
Likewise, Wahl’s interpretation refers to the idea that the Court could not “substitute itself for the legislature”. This is the reason that justifies his restrictive interpretation of the Directive 92/85; while Kokott opens its application to the intended mother through the identification of a scope beyond the literal meaning of EU legislation.
The two Opinions seem to be complementary: the Wahl’s one solicits the EU and the national legislators to solve the impasse created by the lack of rules on new family relationships. Instead, the Kokott’s one reassures the national legislators that surrogacy is not outside principles and purposes of EU existing legislation.
Perhaps it’s time to make a step forward and consider the possibility to elaborate a more inclusive definition of “Family” applicable to all European countries.
In fact, despite the political and legislative inertia, claims for rights will increase even if the specific family models have not completely accepted in the cultural root of a given system yet.