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Mother not entitled to paid leave because child was born through surrogacy

Ms Z, who is a teacher, was refused any paid leave of absence after her child was born in 2010.

Image: Mother and Baby via Shutterstock

A EUROPEAN COURT has issued a legal opinion to state that an Irish mother is not entitled to a paid leave of absence from work as her situation falls outside the scope of the law.

The woman, who took her case to the Court of Justice of the European Union, had a child through surrogacy but was refused a paid leave of absence from her place of employment.

Known as Ms Z, the woman is a teacher and she suffers from a rare condition whereby she has no uterus which means she cannot support a pregnancy despite being fertile with healthy ovaries.

She and her husband had arranged for a surrogate mother to give birth to their child in California. The child 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 argued that she had been subject to discrimination on grounds of sex, family status and disability. However, there is no specific provision in Irish legislation for leave arising from the birth of a child through such an arrangement and the Advocate General said the country’s courts will have to decide if women will be afforded the same rights as those parents who adopt children.

Paid maternity leave and adoption leave are both regulated under Irish law.

The initial complaint had been made to the Equality Tribunal, which in turn, asked the European court if the refusal by the employer was a breach of EU law.

Today, the legal opinion of the Advocate General outlined that there was no discrimination on the grounds of sex as the differential treatment was not based on sex but on the “refusal of national authorities to equate her situation with that of either a woman who has given birth, or an adoptive mother”.

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“Finding that the male parent of a child born through surrogacy would be treated in exactly the same manner”, the Advocate General Nils Wahl dismissed the argument.

He also distinguished the case from the situation of a pregnant worker falling under the scope of the Pregnant Workers Directive, which provides for maternity leave of at least 14 weeks. In that regard, he emphasised that the protection afforded by the Directive applies to women who have given birth to a child and that it aims at protecting those workers in their fragile physical state.

Although he stated that Ms Z’s situation should be compared to that of an adoptive mother, he emphasised that Ireland had not yet passed legislation harmonising the right to paid leave.

A full judgement is expected later this year or early next year.

Download the full, legal opinion>

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