The European Court of Justice issued
contradictory opinions Thursday on a woman's right to maternity leave
should her baby be born to a surrogate mother -- one favouring paid
leave, the other not.
In ruling on the case of a
British woman identified only as C.D., advocate general Juliane Kokott
decided that "an intended mother who has a baby through a surrogacy
arrangement has the right to receive maternity leave provided for under
EU law."
European Union rules set in 1992 provide for paid leave -- now at 14 weeks -- but take only biological motherhood as the norm.
Kokott
said that as long as surrogacy was permitted in a country, a woman
assuming responsibility for a baby after its birth -- the intended
mother -- was entitled to maternity leave and whether or not she
breastfed the child.
Both the surrogate mother and the intended mother must be given at least two weeks of paid leave each, Kokott said.
SHARED LEAVE DAYS
The
remaining 10 weeks of the EU's required 14 must be shared between the
two, taking into account the protection of "the woman who has recently
given birth and the child's best interests."
But in a
separate case also involving a request for maternity leave from an
intended mother, advocate general Nils Wahl took a different view.
The
ECJ was asked for its opinion by Ireland's Equality Tribunal after a
teacher known as Ms Z was refused paid leave of absence after the birth
of a child through a surrogacy arrangement.
She
complained that she had been subject to discrimination on grounds of
sex, family status and disability -- the last because she has no uterus
and cannot support a pregnancy.
But Wahl rejected the claim, saying "Ms Z has not been subject to any prohibited discrimination on grounds of sex."
He
said the differential treatment was based on the refusal by authorities
"to equate her situation with that of either a woman who has given
birth, or an adoptive mother."
He also added that she
could not benefit from the rights of an adoptive mother because EU
member states had not yet harmonised the right to paid leave for
adoptions.
The opinions by the advocate generals are
not binding on the court but it more often than not follows the advice
in its final rulings.
0 comments:
Post a Comment