MATERNITY LEAVE : ADVOCATES-GENERAL DISAGREE ON SURROGACY.

PositionAdvocate-Generals Nils Wahl & Juliane Kokott

The ethical debate over the rights of the two mothers involved in a surrogate pregnancy is often marked by a sexist dichotomy - as proved by the EU Court of Justice, on 26 September. Two advocates-general, one male and one female, have reached radically different conclusions in cases concerning non-biological mothers who were refused the right to paid maternity leave (Cases C-167/12 and C-363/12). Nils Wahl said that the intended mother should not have the right to maternity leave, while Juliane Kokott found that both the surrogate and the intended mother should have this right.

DISPARITY IN EU LAWS

As well as the "disorder" created by these differing conclusions - in an institution where communication is so "structured" - this provides incontrovertible proof that the right to maternity leave granted under Community law is not yet clear - at least, the current texts do not address social and ethical questions, such as surrogacy.

The birth of a child within the framework of a surrogacy agreement is the subject of huge differences in laws within the EU: it is often forbidden, such as in France, while in the Netherlands and the United Kingdom it is only permitted for heterosexual couples. In Ireland, the situation is more vague: it is neither explicity prohibited nor authorised.

Via these two cases, the court has examined the issue of these mothers' right to maternity leave of a maximum of 14 weeks.a Is this rule aimed at protecting the pregnant woman and her child during a period of vulnerability? Or does it aim to protect an important period in the development of the bond between mother and child - whether that is in the context of a biological birth, adoption or surrogacy?

WAHL: EU LAW NOT RELEVANT

The male Advocate-General, Nils Wahl, underlined that the protection recognised by Council Directive 92/85/ECC on pregnant workers applies to women who have given birth to a child, and aims to protect these workers in their state of physical vulnerability.

Ms Z, a teacher from Ireland, suffers from a rare condition, which means she has no uterus and can therefore not support a pregnancy. In order to have a child, she and her husband arranged for a surrogate mother to give birth to a child in California. The child born under the surrogacy agreement is the genetic child of the couple, and no mention of the surrogate mother is made on the child's American birth certificate. Ms Z was nonetheless refused maternity leave, since Irish law does not...

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