a child through surrogacy had no automatic right under EU law to adoption leave.
Mr Wahl said the woman, a teacher referred to as Mrs Z, was not discriminated against on the grounds of gender or disability when the Department of Education refused to give her 14 weeks’ paid adoptive leave.
The ECJ is the highest court in the European Union.
The finding by Mr Wahl is significant, since the
Advocate General’s opinion is reflected in the final judgement in roughly 80pc
of cases.
The full ECJ judgement is expected in several
months.
Most European countries ban surrogacy outright and
the right of countries to prohibit surrogacy has been upheld by the European
Court of Human Rights.
Most European countries ban surrogacy because it
divides or ‘splits’ motherhood between two or more women and creates an
ambiguity about who the mother of a child really is.
The practice is also regarded as inherently
exploitative by many European states, since in many cases surrogacy involves
financial payment and it is normally economically disadvantaged women who offer
their wombs to better–off commissioning couples or individuals.
Even in European countries where non–commercial
surrogacy is legal, the surrogacy contract is often not enforceable in law for
that reason.
The woman had brought the case to the Equality
Tribunal, which then referred it on to the ECJ in Luxembourg. She and her
husband arranged to have a child through a surrogate mother in California. Despite being the birth mother, the surrogate mother’s name does not appear on the child’s birth certificate.
The pregnancy was brought about by in-vitro
fertilisation and as such Mrs Z and her husband are the “genetic” parents of the
child. The child was born in April 2010.
The couple argued that Mrs Z should have been
granted adoptive leave under the EU Pregnant Workers Directive.
However, Advocate General Wahl declared that the
directive applied only to women who had actually given birth to a child and that
it is aimed at “protecting those workers in their fragile physical
state”.
He also found the treatment she received at the
hands of the authorities was not based on sex, but on the refusal to equate her
situation with that of either a woman who has given birth, or of an adoptive
mother.
He said that the male parent of a child born
through a surrogacy arrangement would be treated in the same way, so therefore
there was no discrimination based on sex.
The Advocate General said it was up to national
courts to decide whether parents of children born to a surrogate mother should
enjoy the same rights as those who have adopted children.
He also found that Mrs Z was not discriminated
against under EU disability law, which he said was limited in scope and “seek to
ensure full and effective participation in professional life by
all”.
In her case, he argued, the inability to carry a
pregnancy to full term did not prevent her from such
participation.
In March, Mr Justice Henry Abbott ruled in a
landmark case in the High Court that genetic parents of surrogate children
should be regarded as their legal parents.
That ruling has since been appealed by the State
to the Supreme Court and it is expected to be ruled on early in
2014.
