Surrogacy: European justice links childbirth and maternity leave

Publié le : 21 March 2014

 In Ireland and the United Kingdom, two countries where surrogacy is legal, two women have "tried to obtain paid leave equivalent to maternity leave or adoption leave" after entering a surrogacy agreement.  In the first instance, the two women were turned down because "they had never been pregnant and […] the children had not been adopted". Dissatisfied with the decision, the two women initiated a process during which the courts decided to call on the European Court of Justice (ECJ) to check that their decision was compatible with the 1992 "Pregnant Workers" Directive. 

According to the ECJ, there are no provisions within European Union Law to oblige Member States to grant this type of leave to women who enter surrogacy agreements, the surrogate mother being referred to as the "commissioned mother" by the ECJ: "EU [European Union] law does not impose maternity leave or the equivalent for a commissioned mother who has given birth to a child through a surrogacy agreement". 

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