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Maternity leave and surrogacy just when we thought we had some clarity ...

27/09/2013
Europe eh?!  Yesterday I blogged about the case of C.D. v S.T., a referral from the Newcastle Employment Tribunal in which Advocate General Kokott gave her opinion that a woman who has a child through

Europe eh?!  Yesterday I blogged about the case of C.D. v S.T., a referral from the Newcastle Employment Tribunal in which Advocate General Kokott gave her opinion that a woman who has a child through a surrogate mother has the right to maternity leave under the Pregnant Workers Directive where she takes the child into her care following birth; surrogacy is permitted in the Member State concerned and its national requirements are satisfied. 


Later yesterday in another surrogacy case referred by the Irish Equality Tribunal, Z v A Government Department and the Board of Management of a Community School, Advocate General Wahl gave his opinion that the Pregnant Workers Directive should not be interpreted as allowing a woman who has a child through a surrogate mother to have the right to maternity leave. 


So we have two conflicting opinions issued on the same day, on cases that the ECJ has not linked, on the right of women who have a child through a surrogate mother to take maternity leave. 


Advocate Generals issue non binding opinions on cases before they reach a full ECJ hearing.  As an observation only, Advocate General Kokott is a woman and Advocate General Wahl is a man. 


Advocate General Kokott interpreted the Pregnant Workers Directive as designed not only to protect workers but to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth.  She observed that the intended mother will be faced with the challenge of bonding with the child, integrating it into the family and adjusting to her role as a mother.  In her view the best interests of the child must be a primary consideration and the special relationship of intended mothers and their child warrants protection in the same way as it does in the case of a biological mother. 


Advocate General Wahl considered that the Pregnant Workers Directive was aimed at protecting only women who gave birth and was concerned with helping female workers recover from the physical and mental constraints of pregnancy and childbirth.  On this basis he could not read the Pregnant Workers Directive as applying to intended mothers.  He also observed that if the Pregnant Workers Directive was interpreted as extending to intended mothers that would be inconsistent with mothers who adopt a child who are currently not entitled to paid leave under EU law.


We will have to await the final Judgment in these cases for further clarification.  It is difficult to say what finding the ECJ will make because at times they interpret Directives flexibly to reflect modern society.  At other times, as was the case in Grant v South West Trains (in which they declined to interpret the then Equal Treatment Directive as applying to same sex discrimination) they decline to do so and leave it to the legislature to change the law.   

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