Equality Tribunal Rules on Surrogacy QuestionPosted: August 19, 2014
We had previously posted that the European Court of Justice had issued an opinion on a case referred to them, and found that EU law does not require that a mother who has had a baby through a surrogate agreement should be entitled to maternity leave or its equivalent. This case has now been decided upon by the Equality Tribunal here in Ireland.
In the case of Ms Z. and a Government Department and the Board of Management of a Community School (EE/2010/181, EE/2010/875) DEC-E2014-050, the case revolved around Ms Z., a teacher working in Ireland, who used a surrogate mother in order to have a child. She applied for paid leave equivalent to maternity leave or adoption leave. The application was refused on the grounds Ms Z. had never been pregnant and the child had not been adopted by the parents.
Equality Tribunal’s Considerations
The Tribunal notes that “I have considered all oral and written evidence presented to me by the parties, as well as the preliminary ruling made by the Grand Chamber of the Court of Justice of the European Union on 18 March 2014, concerning case C-363/12, Z. v. A Government Department and The Board of Management of a Community School. Arrangements which allow persons to become parents via a surrogacy arrangement were unregulated in Ireland at the time the complainant’s daughter was born in California, and still are not at the time of writing. This means there is no statute to address the complexities of the situation intended parents find themselves in, including any rights they might have in the workplace. As noted, the respondents did not dispute the complainant’s evidence, and in particular did not dispute that she is a person with a disability within the meaning of the Employment Equality Acts, but argued that due to the manner in which maternity leave and adoptive leave are regulated in statute, it was not within the respondents’ gift to grant the paid leave sought by the complainant as by right.”
The Tribunal also give their reasons for referring this to the European Court in the first place, “…in light of the fact that the various forms of Assisted Human Reproduction, including surrogacy, represent a new area of social and family life in which very little law exists at present, I considered that it was prudent to stay proceedings and make a reference for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union, to the Court of Justice of the European Union on 26 July 2012. This was to ascertain whether any rights that address the complainant’s situation exist under European Law, in light of the fact that the Maternity Protection Acts are the transposition into Irish law of the Council Directive 92/85/EEC of 19 October 1992 concerning the implementation of measures to encourage improvements in the safety and health of pregnant workers, workers who have recently given birth and women who are breastfeeding.”
The Tribunal ruled that in line with the recommendation from the ECJ the employers did not discriminate against the employee in not affording them the right to maternity or adoptive leave following birth through surrogacy.
It is interesting to note the progressions of this through the initial Tribunal and then on to the European Court of Justice, and it is highly likely that we will see surrogacy being defined in any future legislation regarding family leave entitlements.