Surrogacy no grounds for maternity leave rules ECJ

Ruling upholds legal opinion issued by the court in September

The European Court of Justice has ruled that an Irish woman whose baby was born through a surrogacy arrangement, is not entitled to paid maternity or adoption leave. The ruling confirms a legal opinion issued by the court in September.

Ms Z, a teacher in an Irish school, had applied for paid maternity leave after her baby was born through a surrogacy mother in California, but was refused. A similar case regarding a mother in the UK who had also been refused paid leave was also considered by the court.

In its ruling published yesterday the Luxembourg court said that EU law does not provide for what it terms “commissioning mothers” to be entitled to paid leave equivalent to maternity or adoption leave.

The court was asked to consider whether the national decision not to grant the mother leave was contrary to the Pregnant Workers Directive or if it constituted discrimination on grounds of sex or of disability. It ruled that the mother in question does not fall within the scope of the Pregnant Workers Directive, as the directive “presupposes that the worker concerns has been pregnant and has given birth to a child”. It said that, while maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, that objective concerns only the period after pregnancy and childbirth. However, the court said member states are free to apply “more favourable rules” for such mothers, if they so wish.


The court found no evidence of discrimination on grounds of sex as the father is not entitled to such leave either. Similarly, it rejected the argument that Ms Z has been discriminated against on the grounds of disability, in light of the fact that the woman had no uterus and could not support a pregnancy. “The concept of ‘disability’ within the meaning of that directive presupposes that the limitation from which the person suffers, in interaction with various barriers, may hinder that person’s full and effective participation in professional life on an equal basis with other workers,” the judgment said.

Irish MEP Emer Costello said the ruling "has again highlighted the need for Irish legislation on assisted human reproduction".

Suzanne Lynch

Suzanne Lynch

Suzanne Lynch, a former Irish Times journalist, was Washington correspondent and, before that, Europe correspondent