Eversheds says CJEU ruling has clarified maternity rights for surrogate parents

Eversheds partner Naeema Choudry has commented on the EU’s decision in two cases concerning surrogate mothers, in which it held that EU law does not require that a mother who has had a baby through a surrogacy arrangement should be entitled to maternity leave or its equivalent.

Choudry focused on last year’s issue of maternity rights for surrogate parents, when two advocates-general to the Court of Justice of the European Union (CJEU) gave conflicting opinions on the same day, highlighting the complexity of EU discrimination law in this area.

But now, she said, that confusion ‘has been dispelled by a final ruling from the CJEU, although the case carries less significance for UK employers now, as the Children and Families Act will extend the right to paid leave to people who become parents through surrogacy’.

However, Choudry added, the cases also had a broader significance, raising fundamental questions about the concept of motherhood and the purpose of maternity protection legislation.

She said: ‘The CJEU has decided that EU law does not require that a mother who has had a baby through a surrogacy arrangement should be entitled to maternity leave or its equivalent. Although the approach may appear, on its face, not to advance the rights of mothers through surrogacy, it could be seen as refusing to perpetuate a traditional distribution of the roles of men and women.

‘This approach seems to be in line with other recent CJEU decisions, in particular the decision in the case of Roca Alvarez [2010], which appeared to recognise that confining certain rights to mothers may, in practice, disadvantage both men and women.

‘The CJEU also considered whether the inability to have a child would amount to a “disability” under the EU discrimination legislation. While accepting that the inability to bear her own child may be a great source of suffering to a woman, this would not prevent her from full participation in professional life and as such the CJEU found that the inability to have a child did not amount to a “disability”.’

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