By Marianna Iliadou
In surrogacy, a woman (surrogate) gestates a child for a (different/same-sex) couple or single person (intended parents [IPs]). This can generate issues in the workplace: for example, IPs may be unable to secure leave after the birth of the surrogate-born child, as maternity leave is traditionally linked to gestation and childbirth. In this blog post, I will examine maternity, paternity, and parental leave within the European Union (EU) and its applicability to surrogacy. While EU maternity leave policy regarding surrogacy has not seen developments since 2014, recent developments concerning paternity leave bring the topic back to the fore.
As a supranational organization, the EU only regulates matters on which it has competence/power, conferred by its Member States (MS). While parenthood as such does not fall within these competences, employment policies do. The EU has adopted Directives on employment leave policies to (minimally) harmonize this area of law, i.e., Member States must implement the Directives by incorporating them into national law to create common standards.
It should be highlighted at the outset that the great majority of Member States either ban surrogacy or do not regulate it. Therefore, the discussion of leave policies is relevant only in states that regulate surrogacy by law (as lawful practice) or tolerate it in the absence of legal regulation.
The EU first adopted a Directive on maternity leave in 1992. This was the Council Directive 92/85/EEC “on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.” This Directive gives mothers a minimum of 14 weeks continuous (paid) maternity leave with 2-week compulsory leave before and/or after “confinement.”
A framework for paternity leave was adopted in 2019. It was the Directive (EU) 2019/1158 on work-life balance for parents and carers that introduced, for the first time, a minimum of 10 working days for paid paternity leave. Previously, fathers, or second parents, relied on the Council Directive 2010/18/EU on “parental leave,” available to both men and women, for the birth or adoption of a child. Although the 2019 Directive repealed and replaced the 2010 Directive, under the new regime, parental leave is still available to men and women for up to four months, in addition to the (new) paternity leave.
But do these leave policies apply to IPs in Member States?
In 2014, the European Court of Justice (ECJ) was faced with the question of whether the maternity leave Directive applies to intended mothers. In the Z case, the Irish intended mother, a schoolteacher, undertook surrogacy in the US. In the (pre-Brexit) CD case, the British intended mother, working for the National Health Service, undertook domestic surrogacy. In both cases, the intended mother was denied maternity leave by their employer on the basis that it was not her gestating and giving birth to the child. The ECJ, through the preliminary ruling procedure, delivered the two decisions on the same day and held that the Directive was indeed aimed at protecting pregnant employees, regardless of whether the intended mother breastfed, as was the case in CD, as the Directive only applies when it is the same woman that gestates, gives birth, and breastfeeds.
The alternative claim for adoption leave by the intended mother in Z was also dismissed by the Court, as adoption leave was optional for Member States to regulate (para 63). Additionally, the ECJ held that there was no sex discrimination, as intended fathers would also not be eligible for a leave ( para 52), while there was no disability discrimination either, because the inability to gestate did not affect a woman’s access to employment, and the EU framework requires the disability to hinder work participation to be considered under EU disability discrimination (paras 80-82), demonstrating the limits of the equality approach.
The ECJ followed the Advocate General (AG) Wahl’s opinion in the Z case. However, AG Kokott, in the CD case, opined that maternity leave should be available to intended mothers irrespective of whether they breastfeed. She highlighted that maternity leave serves the additional purpose of an “unhindered development of the mother-child relationship,” and as long as MS recognize the legal relationship between the intended mother and the child, EU law and the Directive should apply.
Such a position seems more fit for purpose. It should not be overlooked that one of the underlying purposes of the maternity leave Directive is equality between women and men in the workplace. The challenges mothers face in the workplace do not necessarily differ based on childbirth, particularly as women continue to disproportionately assume caring responsibilities, and mothers who cannot gestate should not be disadvantaged. The fact that this Directive did not envisage cases where gestation and motherhood are disconnected should not distract from the overall aim of the Directive to promote workplace equality between men and women.
It should be noted that the findings of the ECJ set the standard for EU law and what is required by the Directives. MS can go beyond these minimum requirements. For example, the UK subsequently changed its leave policies and now IPs are eligible for a leave policy.
To date, there have been no EU cases for intended fathers. However, this could change given the recent Directive on paternity leave. It is difficult to predict whether the Court would be more favorable to intended fathers, or the second intended parent. Nonetheless, unlike grounding maternity leave on pregnancy and childbirth, the wording of the paternity leave Directive suggests a friendlier approach, as paternity leave “should be granted irrespective of marital or family status” (Article 4(3)). This seemingly covers cases of surrogacy, particularly for intended fathers with a genetic link to the child, as even where surrogacy is unlawful, genetic fathers can establish their legal parenthood.
Although the envisaged timeframe for maternity and paternity leave differs drastically (14 weeks to 10 working days), reinforcing the stereotype of women as the main child care givers, inequality in terms of eligibility may arise if intended fathers were to be granted paternity leave, while intended mothers continue to be ineligible for maternity leave. The unavailability of leave for intended fathers was a key consideration by the ECJ in the above mentioned cases. Therefore, should paternity leave become available to intended fathers, the sex discrimination claim would no longer be dismissed, and this could potentially lead to a more purposeful reading of the maternity leave Directive.
In terms of parental leave, there is greater flexibility for Member States as to when such leave is available. Member States “are encouraged to grant the right to parental leave to all workers who exercise parental responsibilities” (Preamble, recital 21), which again seems promising for surrogacy, as even when IPs are not recognized as legal parents, they usually have parental responsibility. However, it depends on whether Member States wish to extend such rights to IPs, and, if they decide not to, as the earlier cases on maternity leave demonstrate, the Court might not interfere.
Finally, a brief remark on self-employed IPs. For self-employed women, the Directive 2010/41/EU guarantees access to “maternity allowance” for at least 14 weeks, but there is nothing to suggest this applies to self-employed intended mothers, given that maternity leave is not extended to employed intended mothers. Also, there is no specific mention of self-employment in the 2019 Directive, but Directive 2010/41/EU does promote equal treatment of self-employed people, suggesting that should employed intended fathers be eligible for paternity leave, so should self-employed intended fathers.
To summarize, the current interpretation of the maternity leave Directive focuses on childbirth, which has disadvantaged intended mothers. While this position has not been challenged since the 2014 ECJ cases, with the introduction of paternity leave and its potential extension to intended fathers, it seems an opportune moment for the European Union to revisit its position on leave policies and surrogacy.
Dr. Marianna Iliadou is a Lecturer in Law at the University of Sussex, UK.
I’d like to thank my colleague, Dr Ioannis Katsaroumpas, for his insightful comments on EU employment law.