Surrogacy: the right to maternity leave before the Court of Justice of the European Union

Publié le : 4 October 2013

 The Court of Justice of the European Union (CJEU) will soon have to pass judgement on the entitlement to maternity leave for women who have had a child by surrogacy. Two cases were recently presented to the CJEU by two women who were refused maternity leave after having had children by surrogacy.  On Thursday, 29 September, two Advocate Generals examined the cases separately and failed to agree.
For Juliane Kokott, the woman who carried the child and the woman who is going to be recognised as the child’s mother should share their maternity leave in accordance with European legislation. However, Nils Wahl thinks otherwise – based on various European directives, women who become mothers via surrogacy are not automatically entitled to paid maternity leave. He went on to add that,

"I do not think that a woman who has a child by surrogacy can equate her situation to that of a woman who, having been pregnant and tolerated the physical and mental constraints of pregnancy, gives birth to a child".
The final ruling is expected over the coming months and will inevitably have repercussions on whether or not surrogacy is recognised across Europe. 

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