The lack of legislation in relation to surrogacy is relevant not just to the legal parentage and citizenship of the child. It is also relevant to the maternity benefits and parental leave entitlements of the intended parents of the child under a surrogacy agreement.
The Irish Position:
Currently, the parent of a child born via surrogate is not eligible for either maternity leave or adoptive leave. The only leave that the intended parent may avail of is parental leave.
There is a significant difference between these entitlements. Under Irish law, maternity leave entitles a mother to 26 weeks paid leave from work. Adoptive leave entitles an adoptive mother or a sole adopting father to 24 weeks paid leave. Parental leave, however, would only entitle an intended parent to 18 weeks unpaid leave, with the consent of their employer.
The ancillary issues surrounding surrogacy are becoming more and more pressing. The complex issues raised have posed a problem not just for Irish Courts. The Court of Justice of the European Union is currently dealing with diverging legal opinion regarding the leave rights of surrogate parents and it has yet to rule definitively on the matter.
Diverging European Views:
In one case, an Irish woman, who had previously undergone an emergency hysterectomy, had a child via surrogate, using her and her husband’s genetic material. The child was born in a US state where surrogacy arrangements are legal and the couple was registered on the child’s birth certificate as her legal and biological parents. Her employer had agreed that she could avail of adoptive leave. However when she applied to the Department of Social Protection for the maternity leave allowance, she was refused because there is no express provision in Irish legislation for paid leave arising from the birth of a child through a surrogacy arrangement.
The woman brought a case before the Equality Tribunal in Ireland on the grounds that she was being discriminated against on the basis of her sex, family status and disability arising from her inability to give birth. The matter was referred to the Court of Justice of the European Union to determine whether the refusal of the State to grant paid leave was a breach of European anti-discrimination rules.
The final ruling on this case is awaited. However the Advocate General (an advisor to the Court of Justice), Nihls Wahl, has given his Opinion on the case and his Opinion is not binding, more often than not the Court will follow the Advocate General’s advice.
The Advocate General found that surrogacy did not fall under the scope of the Pregnant Workers Directive, which provides for maternity leave of at least 14 weeks in order for a woman to recover from childbirth and take care of her new-born baby. He found that the differential treatment of the commissioning mother was based on the State’s refusal to equate her status with that of woman who has given birth or adopted a child. EU member states legislate independently in relation to paid adoptive leave and therefore she cannot rely on the rights of an adoptive mother under EU law. However he did recommend that where national law allows for paid adoptive leave, the national court should assess if different treatment of adoptive parents and of parents who have a child through surrogacy is discrimination contrary to national law.
A similar UK case was referred to the Court of Justice of the European Union where the intended mother of a child born via surrogate was refused paid maternity or adoptive leave. Similarly, the UK does not expressly provide for maternity leave for women who have children via surrogacy. However, on this occasion, Advocate General Juliane Kokott decided that an intended mother under a surrogate agreement has the right to receive maternity leave provided for under EU law, provided the maternity leave of the surrogate mother is deducted from the maternity leave of the intended mother. Both the surrogate mother and the intended mother must be given at least two weeks of paid leave each and the remaining 10 weeks of the EU’s required 14 weeks must be divided between the two women. This is to take into account the interests of the woman who has recently given birth and the best interest of the new-born child.
In light of the above, the need for clarity in this area cannot be understated. Although both of the above Opinions were published in September 2013, a final decision in either case is yet to be published. And while the Children and Family Relationships Bill will deal with some aspects of surrogacy agreements under Irish law, it does not appear to address the ancillary issues, such as maternity leave. In the meantime, children continue to be born via surrogacy and most families do not have the time or the resources to contest their leave entitlements. We can only hope that once the European Court of Justice publishes its decisions in the above cases, it will provide guidance for the national courts and as a result, circumvent the need for additional legislation in this area.
Should you require legal advice in relation to a surrogacy arrangement, please do not hesitate to contact us.