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Surrogacy and maternity rights in employment law

  • Ireland
  • General

30-09-2013

Last week, the European Court of Justice gave an opinion that an Irish woman had not been discriminated against by her employer when she was refused paid maternity or adoptive leave after her child was born through a surrogate. This was in contrast to a separate opinion of the ECJ in relation to a UK case, also given last week, where it expressed the view that mothers whose children are born through surrogacy are covered by EU maternity protection rules.

These cases, referred to as the ‘Z’ case and the ‘C.D. v S.T.’ case respectively, highlight the level of uncertainty surrounding the legal position of mothers whose children are born through surrogacy, as well as reminding us of the complexity that can surround maternity entitlements in certain unusual scenarios.

Some of the more problematic scenarios we have encountered are discussed, from an employment law perspective, in the Q&A below.

Is a mother whose child is born through a surrogate entitled to maternity leave?

It does not appear so, but the issue remains far from clear. Although the opinion of the ECJ in the ‘Z’ case suggests that mothers of children born through surrogacy arrangements are not covered by the maternity protection legislation, the actual implications of this opinion may not go as far as that. The ECJ in this case was only asked whether the mother was discriminated against on the grounds of sex or disability under the Employment Equality legislation. It was not asked specifically whether the maternity protection legislation covers mothers in surrogacy situations.

On the facts, the ECJ came to the view that the mother had not been discriminated against on the grounds of sex because any male parent of a child born through a surrogate would not be entitled to leave either. The ECJ was also of the opinion that the mother was not discriminated against on the grounds of disability (being her inability to carry a child) as that disability in no way impeded her full and effective participation in her professional life.

Given the ECJ’s separate opinion in the UK case of ‘C.D. v S.T’., where the specific question was asked as to whether Directive 1992/85/EC covers mothers of children born to a surrogate, it seems likely that if an Irish court referred the same question to the ECJ, it would follow that opinion. As it stands, however, a refusal to provide a mother with maternity leave where her child was born through a surrogate is not a discriminatory act, so it appears that a mother effectively has no right to it in this scenario.

Is a mother whose child is born through a surrogate entitled to adoptive leave?

No, as it stands a mother would not be entitled to adoptive leave in these circumstances. In its opinion in the ‘Z’ case, the ECJ concluded that there is nothing in EU law that would entitle a mother in a surrogacy arrangement to adoptive leave and that it is therefore up to the national courts to consider whether a refusal to give same would be discriminatory.

In Ireland, the Adoptive Leave Act 1995 provides a minimum period of 24 weeks’ adoptive leave for an ‘adoptive mother’, which is defined as “a woman in whose care a child (of whom she is not the natural mother) has been placed or is to be placed”. The qualification that the mother not be the natural mother of the child would preclude mothers in surrogacy situations, as in these circumstances the mother is in fact the genetic mother, but the child is simply carried by a surrogate.

Is a surrogate herself entitled to maternity leave?

Yes. The Maternity Protection Act 1994 provides a maternity entitlement to any ‘pregnant employee’ to be taken no later than two weeks before the end of the expected week of confinement and to finish no earlier than four weeks after the expected week of confinement. As the timing of the entitlement is triggered by reference to the week of confinement, and no reference is made to the relationship between the child and the surrogate following confinement, it follows that a surrogate mother is entitled to take maternity leave by virtue of the fact that she is pregnant, regardless of whether or not she cares for the child following its birth.

This was also the view of the ECJ in the ‘C.D. v S.T.’ case in the UK, which considered that a surrogate mother is entitled to maternity leave under the Directive both as a pregnant worker (under Article 2(a) of the Directive) prior to giving birth, as well as a worker who has recently given birth (under Article 2(b) of the Directive) following birth.

Is a surrogate entitled to maternity benefit?

It appears so. Section 47(1)(a) of the Social Welfare Act Consolidation 2005 provides that an employee will be entitled to maternity benefit if it is medically certified that she is expected to go into confinement on a given date and will remain entitled to maternity benefits for the duration of the period of maternity leave to which she is entitled under the Maternity Protection Acts. Therefore, the fact that the child is subsequently under the care of its genetic mother does not affect the surrogate’s entitlement to maternity leave, it would also not affect her entitlement to maternity benefits.

Is a mother whose child dies following birth entitled to the remainder of her maternity leave?

Yes. The reason for this is the same reason that an employee who miscarries or gives birth to a stillborn child after 24 weeks of pregnancy is also entitled to full maternity leave. The minimum maternity leave entitlement under the Maternity Protection Act 1994 is allocated by reference to the date of confinement, the key element of which is that the employee gives birth to a child, whether alive or dead (if after 24 weeks). The definition does not contain any requirement that a child born must survive for a certain period of time for the period of confinement to have occurred. As the mother’s maternity leave entitlement is triggered by reference to the period of confinement, there is nothing in the legislation to suggest that her entitlement can be subsequently revoked due to events following confinement, such as the death of the child.

What happens if a mother dies during her maternity leave?

Where a mother dies within 40 weeks of giving birth, the father of her child is entitled to take over the remainder of her maternity leave period. Where the mother dies within 24 weeks of giving birth, the father is entitled to the remainder of that 24 week period and is entitled to additional leave of 16 weeks. Where the mother dies later than 24 weeks following the birth of her child, the father is entitled to leave up to 40 weeks following the birth.

Future Developments

The discrepancy between the opinions of the ECJ in both of last week’s cases highlights the uncertainty in this area of law, not only from a family law context but also an employment law context. In both opinions, however, the ECJ was of the view that a degree of deference needs to be given to member states to legislate for surrogacy situations.

The government’s autumn legislative programme includes a new Family Leave Bill, expected to be published in late 2014. The drafters therefore have a good opportunity to address the uncertainty in an employment law context relating to surrogacy through this bill, but the extent to which this will be addressed, if at all, remains to be seen.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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