For the Court of Justice, EU law does not guarantee maternity or adoption leave to a mother who has used a surrogate to have a baby

In its very first ruling on the subject, the EU Court of Justice, ruling in two cases concerning mothers whose children were born under a surrogacy agreement, held that EU law does not recognise the right to maternity or adoption leave in this situation (Cases C-167/12 and C-363/12). It thus endorsed the restrictive approach recommended by Advocate-General Nils Wahl, which reserves this right to women who have been pregnant and given birth, in opposition to that of fellow Advocate-General Juliane Kokott (see Europolitics 4719), who defended the right to maternity leave for both the surrogate mother and the commissioning mother. However, the court points out that member states are free to apply more favourable rules for the benefit of commissioning mothers with respect to adoption leave. This very small opening demonstrates that existing EU law does not satisfactorily address this societal issue.

Ms D, an employee in a hospital in the United Kingdom, entered into a surrogacy agreement in accordance with UK law. A few months after the birth, a UK court, with the surrogate mother's consent, granted Ms D and her partner full parental responsibility for the child.

Ms Z, a teacher in Ireland, has a rare condition of having no uterus and therefore cannot support a pregnancy. She too entered into an agreement with a surrogate mother in California. Under the laws of that state, Ms Z and her husband are considered the...

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