March-25-2014 in Family Law, Employment Law
The European Court of Justice (CJEU) issued two significant decisions on 18 March 2014 limiting employment rights for surrogate mothers.
The CJEU confirmed that EU Law does not provide surrogate mothers with an entitlement to maternity leave or adoptive leave. Further, the non-provision of leave cannot be classed as sex discrimination because fathers are not entitled to this leave either.
The Court has also decided that a mother who was unable to carry her own child as she did not have a uterus did not suffer from a disability under the Equality Directive and could not avail of the protections of the Directive.
The Court did state that member states could adopt measures to provide enhanced protections to workers.
This decision highlights the urgent need for employment protective legislation in the area of assisted reproduction and surrogacy. The law is not keeping pace with technological developments. Such issues would not have been on the radar when the Maternity Directive was introduced in 1992. Crucially, the UK government has sought to address these issues and provision is being made for a paid leave entitlement for surrogate mothers from April 2015. There are currently no pending proposals for similar changes in Ireland and surrogate mothers have no protective leave entitlements.
If you require further information please contact Anne Lyne or any member of the Hayes Employment Law Team
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