On 26 September, the European Court of Justice issued a legal opinion saying that an Irish woman whose child was born through a surrogacy arrangement is not entitled to maternity or adoptive leave. The case was referred to the ECJ by the Irish Equality Tribunal. Advocate General Nils Wahl's opinion said that school teacher Ms Z had not been discriminated against on the grounds of gender and disability. Although a final judgment will not be made for another three to six months, this legal opinion usually reflects the Court's final view.
According to Wahl, the allegedly different treatment was not based on gender, 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. It is up to the national courts and legislature to decide on its surrogacy regulations. The EU’s Pregnant Workers Directive only applies to women who have given birth and is thus not applicable.
In a March 2013 decision the Irish High Court said that genetic parents of surrogate children should be regarded as their legal parents. This ruling has since been appealed by the State to the Supreme Court. This means that the issue of surrogacy is generally still unregulated in Ireland, and European Directives do not provide further assistance.
Click here to view an article from the Irish Times about the case.
Click here to read a press release from the Equality Authority about the case, which says that the ECJ's legal opinion affirms the Authority's advice about surrogacy.
Click here to view the Opinion of Advocate General Wahl.
However a different ECJ Advocate General advised in a similar case that a British woman and her surrogate were both entitled to paid maternity leave, this to be shared between them. The legal opinion in this case was issued at around the same time as the one in the Irish case. However this case was brought on the grounds of the EU Pregnant Workers Directive as opposed to a gender and disability discrimination basis. It is yet to be seen what impacts the two legal opinions will have on the final judgments of each case.
Click here to view an article from the UK's Independent newspaper.
Click here to read a Bulletin article about an Irish Circuit Court case on a similar issue from 2012.