CJEU rules on conflicting opinions by Advocates General
A mother who has had a baby through a surrogate is not entitled under EU law to maternity leave or its equivalent, the European Court of Justice (CJEU) has held.
Within an hour of the birth, the mother was caring for and breastfeeding the baby. A parental order was granted, but she was denied maternity leave by her employer.
The unequivocal ruling, in CD v ST (Case C 167/12), clears up confusion caused by two conflicting opinions given by Advocates General.
Last year, Advocate General Kokott advised that the mother was entitled to 14 weeks’ paid maternity leave under the Pregnant Workers’ Directive, but that the maternity leave should be shared with the woman who gave birth.
On the same day, in a separate case, Advocate General Wahl advised that the 14 weeks maternity leave is intended to protect a woman’s biological condition after giving birth, in Z v A Government Department and the Board of Management of a Community School (Case C 363/12).
Naeema Choudry, partner at Eversheds, says: “The issue of maternity rights for surrogate parents caused confusion last year when two Advocates General gave conflicting opinions on the same day, highlighting the complexity of EU discrimination law in this area.
“That confusion has been dispelled by a final ruling from the CJEU, though the case carries less significance for UK employers now, as the Children and Families Act 2014 will extend the right to paid leave to people who become parents through surrogacy. Although the approach may appear, on its face, not to advance the rights of mothers through surrogacy, it could be seen as refusing to perpetuate a traditional distribution of the roles of men and women.
“This approach seems to be in line with other recent CJEU decisions, in particular the decision in the case of Roca Alvarez (C-104/09), which appeared to recognise that confining certain rights to mothers may, in practice, disadvantage both men and women.”
The CJEU also dismissed the argument that an inability to have a child amounts to a “disability” under EU discrimination legislation.
From April 2015, intended surrogate parents will qualify for adoption leave, under the 2014 Act.
