On Thursday 28 September 2013, the Court of Justice of the European Union (ECJ) released a legal opinion on a surrogate mother’s right to paid adoption leave after they had been asked to do so by the Irish Equality Tribunal. Advocate General Nils Wahl released his opinion that an Irish woman, referred to as Ms Z, who had a child through surrogacy was not entitled, under EU Law, to the same entitlements as parents who have had a child through adoption. So what does this mean for Irish employers?
Background
Ms Z is a teacher in a public sector school who suffers from a rare condition meaning that she has no uterus meaning that she unfortunately cannot support a pregnancy. In order to have a child, Ms Z arranged for a surrogate mother to give birth to a child in California, and the child was born in April 2010. The terms and conditions of Ms Z’s employment include a right to paid adoption leave and maternity leave. However, there is no express provision in Irish legislation or in Ms Z’s terms and conditions that deals with surrogacy arrangements. After having been refused paid adoption leave and offered only unpaid parental leave, Ms Z brought a complaint before the Equality Tribunal arguing that she had been subjected to discrimination on grounds of sex, family status and disability. The Equality Tribunal then referred the matter to the ECJ for a preliminary ruling/opinion on the matter.
Preliminary Rulings
In a nutshell, a preliminary ruling occurs where a national court or similar body (such as the Equality Tribunal) is faced with a legal dispute which is in some way connected to European Union Law. Where some uncertainty exists, the national court/tribunal may refer questions to the ECJ for a preliminary ruling. When this occurs, one Advocate General of the ECJ will give an ‘opinion’ on the questions raised and the national body, in this case the Equality Tribunal will issue its decision in view of the ECJ opinion. Thus, the ECJ do not decide the case; they issue an opinion which helps the national body make their own decision.
ECJ Findings
In relation to 'disability’, the Advocate General noted that Ms Z’s condition would be deemed a disability in its general context. However, he went on to note that for the purposes of Employment Equality the disability must in some way “compromise her prospects of participating in professional life“. It was deemed that this was not the case in respect of Ms Z’s medical condition and therefore the employee had not been discriminated against on the basis of disability.
In relation to ‘gender’, the Advocate General focused firstly on maternity leave rights and noted that employees are granted maternity leave so as to help “female workers to recover from the physical and mental constraints of enduring pregnancy and the aftermath of childbirth, as well as at facilitating their return to the labour market at the end of their leave“. On this basis, the Advocate General stated that, given the health and safety imperatives associated to maternity leave, he could not see any reason why such protection should be extended to employees who have children through surrogacy. In this sense, a comparison was drawn with adoptive mothers who similarly are not entitled to maternity leave but, instead, receive adoptive leave. Secondly, in terms of gender, the Advocate General noted that a male parent in similar circumstances would have been treated in the same way and therefore there had been no discrimination on the grounds of gender. The Advocate General thirdly focused on adoption leave and stated that EU law does not make any required provision for paid adoptive leave and therefore it was for national courts and legislatures to determine whether or not employees who have children through surrogacy should receive the same entitlements as those who have children through adoption.
Interesting Comparison
It is very interesting to note that in very similar circumstances, the ECJ in the same week issued another preliminary ruling that a British woman who had a child through a surrogate mother was entitled to paid maternity leave, stating that she “has the right to receive maternity leave provided for under EU law after the birth of the child in any event where she takes the child into her care following birth”. This decision would seem to completely contradict the opinion provided in Ms Z’s case. However, it is important to note that these are opinions as opposed to absolute decisions of the ECJ. Ultimately, if the Equality Tribunal were to find against Ms Z, Ms Z may still appeal this matter up as far as a full hearing at the ECJ. When this occurs, the ECJ will be aware of the two preliminary rulings and they will have to then issue a definitive ruling on the matter. Until this occurs, the whole of Europe will be unclear as to the entitlements of surrogate mothers under EU law.
Conclusion
The ramifications of these rulings could be significant for new mothers of surrogate babies in Ireland and across the continent. In this case, the Equality Tribunal will now reach its own decision on the case. If Ms Z is not successful she will have a right to appeal to the Labour Court and again if she is not successful she may end up in a long-drawn out process in the courts, ultimately resulting in the matter coming before the ECJ for a full case determination. While appeals are ongoing and challenges lodged we could be waiting some years before we get final clarification on the rights of surrogate mothers in Ireland.
