On Thursday 26 September, the Court of Justice of the European Union “CJEU” released legal opinions on two recent cases regarding leave entitlements for women who had children via a surrogate mother. Both women argued that they had equal rights to women who actually gave birth. The rulings are the first time the Court has issued an opinion on whether the right to receive maternity leave under the EU Pregnant Workers Directive 1992 extends to mothers who have had a baby via a surrogacy.
In Z v A Government Department and the Board of Management of a Community School C-363/12, Ms Z applied to her school for adoptive leave but was refused paid leave of absence since there is no express provision in Irish legislation for leave arising from the birth of a child through a surrogacy arrangement She was offered only unpaid parental leave. Ms Z brought a case before the Equality Tribunal in Ireland, arguing that she had been subject to discrimination on grounds of sex, family status and disability arising from her inability to give birth. The Equality Tribunal subsequently referred the case to the CJEU, asking the Court whether the refusal to grant the woman paid leave from employment constituted a breach of EU anti-discrimination rules.