ECJ to give opinion on case of Irish woman who had child by surrogate

The European Court of Justice will today issue a legal opinion on a landmark case involving an Irish teacher who claims she was unfairly denied paid adoption or maternity leave following the birth of her child through a surrogacy arrangement.

In April 2010 a surrogate mother in California gave birth to a child for the woman, known as Ms Z, and her husband. Although Ms Z has healthy ovaries and is otherwise fertile she has no uterus and cannot support a pregnancy.

During the surrogate pregnancy, Ms Z applied to her school for adoption leave, but was refused paid leave of absence and offered only unpaid parental leave. She brought a case before the Equality Tribunal in Ireland, arguing she had been unfairly discriminated against on grounds of sex, family status and disability arising from her inability to give birth.

Anti-discrimination
The Equality Tribunal subsequently referred the case to the European Court of Justice, asking the court whether the refusal to grant the woman paid leave from employment constitutes a breach of EU anti-discrimination rules.

The Luxembourg court will also rule today on a similar case relating to a British woman, who took a case in the UK employment tribunal after she was refused adoptive or maternity leave by her employer following the birth of her child through a surrogacy mother in 2011.

The court will for the first time issue an opinion on whether the right to receive maternity leave under the EU pregnant workers directive extends to mothers who have had a baby via a surrogacy.

Ms Z’s case differs in a number of ways from that of the British case, including the argument that Ms Z was discriminated against on the grounds of disability.

Irish legislation
While the terms and conditions of Ms Z's employment included a right to paid adoption and maternity leave, there is no express provision in Irish legislation or in Ms Z's contract for leave arising from the birth of a child through a surrogacy.

The child’s surrogate mother is not named on the child’s American birth certificate.

While today’s opinion is not a full judgment and represents the view of the advocate general and in general the advocate general’s opinions are adopted by the court.

The High Court this year ruled the genetic mother of twins born to a surrogate mother was entitled to be registered as their mother on their birth certificates.