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ECJ and the UK - Surrogacy Arrangements

About The Author

Emily Clements (Former Team Member)

Emily is a Durham University Law graduate due to start as a paralegal in the London Banking & Finance Department of a Silver Circle firm in October 2014, and currently has her targets set on qualifying as a solicitor.

The practice of surrogacy is legal in the UK; it is described in the Surrogacy Arrangements Act 1985 as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birthBy this definition, surrogacy is not therefore, automatically linked with disabilities disallowing a woman from carrying her own child. It is possible for a surrogacy arrangement to take place for the benefit of say: a single woman, a gay couple, or a woman who would like another to carry her child simply by way of convenience.

Surrogacy as a concept can evoke particularly strong ethical objections, leading it to be outlawed entirely in some countries, such as Germany. In particular, some view commercial surrogacy arrangements, as opposed to altruistic surrogacy, as dangerously exploitative. For example, American academic, Anderson considers surrogate motherhood to unethically commodify women and children. Aside from ethical debate, it also raises many challenges in law. First and foremost, the issue of legal parentage can create confusion and difficulties. It is extremely important that a child knows whom their mother and father is. Consequently, parental orders are closely regulated in the UK by The Human Fertilisation and Embryology Act 1990 and the Human Fertilisation and Embryology Act 2008 which made amendments to the 1990 Act.

What are the rights of the commissioning mother according to the ECJ?

The focus of this article is not on the law by which a commissioning couple can become the legal parents of a child born via a surrogacy arrangement, but on the care of that child as a newborn baby. If the commissioning mother is to be able to give her newborn baby the attention it needs, surely she requires similar flexibility from her employer as a mother who gives birth by the traditional method? To ignore such a need must surely amount to discrimination against the commissioning mother.

These questions have recently been dealt with by the European Court of Justice (ECJ), in a somewhat surprising judgment based on the two cases CD v STC and Z v A. Each case concerns women who had used surrogate mothers to have a child. Ms D in CD v STC was employed in the UK as an NHS worker and had gained full legal parentage for the child with her partner whose sperm had been used. Ms Z (in Z v A), who suffered from a rare condition that left her without a uterus and therefore unable to support a pregnancy, was employed as a teacher in Ireland. Her surrogacy arrangement was organised under Californian law, through which she had also gained legal parentage of the surrogate child. Both women were refused any paid maternity or adoption leave on the grounds that neither had been pregnant and the child had not been formally adopted.

The ECJ said that maternity rights embodied in the Pregnant Workers Directive do not in fact extend the right to maternity leave to commissioning mothers. The primary reasoning for this decision relied on the argument that maternity leave is intended to protect the health of vulnerable pregnant women. Allowing a mother to bond with her new child is considered merely a collateral benefit of this central purpose. Pregnant women were distinguished from commissioning mothers as being a “specific risk group” in terms of health and safety.

It was argued, unsuccessfully, that this was a form of direct disability discrimination against the mother on the grounds of her infertility. The ECJ ruled out this claim by Ms Z on the basis that being unable to carry a baby did not ‘hinder’ her ‘full and effective participation… in professional life on an equal basis with other workers’ under the Equal Treatment Framework Directive. Nevertheless, it has been argued that under UK law, embodied in the Equality Act 2010 , the differing definition of disability may render it possible for a person in a similar situation to Ms Z to pursue a disability discrimination claim.

Further, it was suggested that this judgment amounted to sex discrimination. This was again quashed; it was held that the reasoning provided by the ECJ does not apply ‘exclusively to workers of one sex’ and that a commissioning father would be treated equally to a commissioning mother.

Did the ECJ make the correct decision?

Although it is true that a commissioning mother is not likely to be equally vulnerable in terms of her health as a woman who has been through pregnancy and childbirth, it is unclear how this justifies the denial of any paid leave after the birth of the child. A baby is entirely dependent and in need of time to bond with its mother; the existence of a surrogacy arrangement makes no difference to this biological fact.

It has been said in an article written for Kingsley Napley, that although the ECJ’s judgment may be fairly sound from a legal perspective, in essence it is ‘manifestly unfair’ and ‘based on a flawed premise’. It is argued that the special relationship between mother and baby is equally as important as a pregnant woman’s health, and in need of protection. Further, it is suggested that the Pregnant Workers Directive, which came into effect in 1992, is outdated. At this time surrogacy remained illegal in many countries; evidently much has changed since this time. The writer compares surrogacy with another recent societal change that necessitated corresponding legal change: the evolution in society’s treatment of homosexuality. The law has now appropriately adapted to recognise this with the Marriage (Same Sex Couples) Act 2013 coming into force in March 2014. Others have similarly noted this, such as Vanessa Hogan at Hogan Lovells:

Advances in medical technology in recent years have made surrogacy arrangements more common. These decisions show that laws that were drafted two decades ago do not cater for such advances.

What about the UK stance?

Whilst the ECJ may be behind in this regard, the UK is proving itself to be somewhat more progressive. The Pregnant Workers Directive does leave states ‘free to apply more favourable rules’ for the benefit of commissioning mothers, and the UK is set to do so.The Children & Families Act 2014 is set to come into force next April to give commissioning mothers who are caring for children born through a surrogacy arrangement rights to paid leave. This will be consistent with the recent trend in the UK which recognises the importance of intended mothers, both in adoption and surrogacy arrangements, having time to bond with their new child.

Views on the issue may well be influenced by personal feelings and differing ethical stances taken towards surrogacy itself. However, on a practical and human level, it seems the UK have taken the more reasonable approach on the matter; mothers must be given time off by their employers to bond with their new child regardless of whether they endured a pregnancy or not.

Further Reading 

Shaun Pattinson, Medical Law and Ethics (2011)

Out-Law.com, CJEU: A mother who has a child through a surrogacy arrangement is not entitled to maternity leave

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Tagged: Discrimination, Employment Law, European Union, Family Law

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