THE European Court of Justice has ruled that an Irish woman, who became a mother through a surrogacy arrangement in the United States, is not entitled to paid adoptive leave here.
The woman, identified only as ‘Ms Z’, is a teacher and applied to the Department of Education for adoption leave which was refused.
She suffers from a rare medical condition that means, while she has healthy ovaries and is otherwise fertile, she has no uterus and therefore cannot carry a pregnancy.
Using in-vitro fertilisation, the teacher and her husband arranged for a surrogate in California to give birth to their genetic child who was born in April 2010.
However having been refused adoption leave and only offered unpaid parental leave by her employers, the woman brought a complaint to the Equality Tribunal claiming she had been discriminated on the grounds of sex, family status and disability. The tribunal then referred the matter to the ECJ.
In an opinion delivered by the ECJ today, Advocate General Nils Wahl said the woman had no automatic rights under EU law to the same leave entitlements as an adoptive mother.
He said that various EU directives did not give a right to paid leave of absence for women who became mothers through surrogacy.
He pointed out that the purpose of maternity leave entitlements for pregnant workers was to allow female workers recover from the “physical and mental constraints of enduring pregnancy and the aftermath of childbirth”.
“I do not believe that a woman undertaking surrogacy can be compared to a woman who, after being pregnant and having endured the physical and mental constraints of pregnancy, gives birth to a child,” said Mr Wahl before adding that he did not in any way want to understate the difficulties involved in undertaking surrogacy.
The full judgment of the ECJ in the case is expected to be published in the coming months.