PJF Logo
Do you have a case? Click Here

Tel: +353 45 489 000

  • What We Do
    • Personal Injury*
    • Redundancy, Termination of Employment and Settlement Agreements
    • Medical Negligence
    • Wills, Probate, Inheritance Disputes
    • Property Solicitors
    • Complex Family Law
    • Decision Making, Mental Capacity and Wardship
    • Legal Advice for the Elderly
    • Notary Public
    • Farming / Equestrian Law
  • How We Work
  • About
  • News
  • Contact
Do you have a case? Click Here

Tel: +353 45 489 000

Maternity Benefits and Surrogacy Arrangements

  • Surrogacy and Irish Law
  • Maternity Benefits and Surrogacy Arrangements

What We Do

  • Medical Negligence
    • Accident and Emergency Claims
    • Understanding Healthcare-Associated Infection (HAI) Claims
    • Cosmetic Surgery Negligence
    • Delayed Diagnosis Claims
    • How To Make a Medical Negligence Claim
    • Wrong Site Surgery Claims
    • Cancer Misdiagnosis Claims
    • Surgery Negligence
    • Hospital Negligence
    • Birth Injury Claims: Guide to Compensation and Concerns
    • Medical Negligence Kildare
    • Medical negligence and bile duct injuries
    • Will Irish healthcare issues cause an increase in medical negligence claims?
    • Plastic Surgery and Cosmetic Procedures
    • Birth Injuries to Mothers
    • Birth Injuries to Children
    • How To Prove Medical Negligence
    • Hip replacements and joint replacements
  • Redundancy, Termination of Employment and Settlement Agreements
  • Wills, Probate, Inheritance Disputes
    • How to Make a Will For Your Peace of Mind
    • Understanding Enduring Power of Attorney in Ireland
    • What is Probate
    • Issue Arising Regarding The Detention Of Those With Limited Mental Capacity In Hospitals And Nursing Homes
    • Inheritance disputes
      • Death of a spouse: your entitlements
      • Inheritance: The Right to Your Home
      • Children’s Inheritance
      • Relying on a Promise of Inheritance
      • Was the Deceased Capable of Making a Will?
      • Was the Deceased Pressurised into Preparing their Will?
      • Legacies
    • Wills/Probate Legal Terms Explained
    • Probate/Property of the deceased
    • Enduring Powers of Attorney
    • Guide to Making a Will
    • Do I Need a Solicitor when Making my Will?
    • Inheritance for Cohabitants
    • I am a Beneficiary of a Will - What Can I Expect?
    • Missing Wills
    • Testamentary Guardian
    • Dealing with the estate of a deceased person in Ireland
    • Assisted Decision-Making (Capacity) Act, 2015
    • Trust Wills
    • Advanced Healthcare Directive
  • Complex Family Law
    • Child Custody in Ireland: How Are Decisions Made?
    • Divorce in Ireland – A Complete Guide
    • Judicial Separations in Ireland – A Complete Guide
    • Major Changes to Divorce Law
    • Changing Financial Circumstances and Complex Family Law
    • Separation in Ireland
    • Divorce Solicitors
    • Maintenance
    • Family Mediation and Alternative Dispute Resolution
    • Complex Family Law - Separation and Divorce
    • Cohabitation
    • Facebook and Family Law
    • Surrogacy and Irish Law
      • Maternity Benefits and Surrogacy Arrangements
      • Surrogacy Abroad
    • Pre-nuptial Agreements
    • The Gender Recognition Act 2015
    • Rights for unmarried fathers, step-parents and grandparents
  • Property Solicitors
    • Buying a Home - the Hidden Costs
    • First-Time Buyer Solicitors – Expert Guidance from PJF
    • Conveyancing and Property Solicitors in Kildare & Dublin
    • Guide for First Time Buyers
    • Legal Investigations During Conveyancing Process
    • What is Conveyancing
    • Why You Need a Solicitor When Obtaining a Mortgage
    • Confusing legal terms explained for first time buyers
    • Guide to Purchasing a Property
    • Guide to selling a property
    • Buying an Apartment
    • Buying at Auction
    • Help to Buy Incentive (HTB)
    • Residential Tenancies Amendment Act 2015
    • Local Property Tax
    • Septic Tank Charge
  • Decision Making, Mental Capacity and Wardship
    • Assisted Decision Making: Understanding the replacement for the Ward of Court System
  • Legal Advice for the Elderly
    • The Fair Deal Scheme
  • Notary Public
  • Farming / Equestrian Law
    • Family Farm Inheritance
    • Farmers - Making a Will
    • Agribusiness
    • Transferring the Family Farm
      • Transfers of Land to Young Trained Farmers
    • Employing Workers on the Farm
    • Farmers Family Law
    • Farming Boundaries
    • Rights of Way
  • Commercial and Tax
  • Personal Injury*
    • Our guide to Personal Injury cases
    • Road Traffic Accidents
    • Accidents in the Workplace
    • Motor Insurers Bureau (MIBI) and accidents with uninsured drivers
    • Mental health, PTSD and Accidents – When to Get Advice from a Solicitor

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.

The Future:

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. Our contact details are available here.

PATRICK J FARRELL AND COMPANY LLP

Legal | Privacy Policy | Cookie Policy

MAKE A PAYMENT

 

 

Contact us
Patrick J Farrell and Company LLP
Solicitors
Charlotte Street, Newbridge
Co. Kildare
W12 C663, Ireland
Phone: +353 45 489 000
Fax: +353 45 433 064
Email: postroom@pjf.ie
© Patrick J Farrell and Company LLP, Solicitors. All rights reserved. Web Design & Web Development by Acton Web.
  •    
  •    
  •    
  •    

* In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Cookie consent
We use cookies to optimise our website and our service.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage {vendor_count} vendors Read more about these purposes
Preferences
{title} {title} {title}