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No maternity leave for women using surrogates: EU top court

By Sapa-AFP | 2014-03-19 07:10:20.0 | COMMENTS [ 10 ]

Women who use surrogate mothers to have a child do not have a legal right to maternity leave when the baby is born, the European Court of Justice ruled on Tuesday.

The European Union's highest court said EU "law does not establish a right to paid leave equal to maternity leave or adoption leave" for women having a child by a surrogate.

At the same time, EU member states are free to apply more accommodating rules if they choose to do so, it added.

The court was considering two cases: one of a British woman who could not get pregnant and had a child, fathered by her husband but carried by another woman and using another woman's egg.

The husband and wife were subsequently given full parental rights over the child with the consent of the surrogate mother.

In the second case, a woman in Ireland who was fertile but had no uterus, used a surrogate mother in California. She and her husband were the child's full biological parents and recognised as such under US law.

In both cases, however, when the women asked for maternity leave so as to look after their babies, their employers turned them down on the grounds that neither had gone through a pregnancy or adopted their children.

Reviewing the cases against EU legislation on conditions for working mothers, fair treatment and physical handicap, the court said it could find no grounds to say that such a refusal of maternity leave breached EU law.

The relevant 1992 law stated that maternity leave must be granted to a woman "who has been pregnant and who has given birth to a child," it noted.

COMMENTS [ 10 ]

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MasheleJ

So y'all at European Court of Justice are OK with surrogacy but fail to understand the need for a "mother"- child bonding process? Change yer laws to include those y'all failed to consider first time around...

2014-03-19 08:09:50.0 | 5 replies

Tabeya

My brother I know you mean well talking from a motherly experience. There is a but though, that is the woman should be allowed some time (2 to 3 weeks) to bond with the new born and not more than that. I mean she hasn't gone through any pain or anything but the surrogate mom is the one who felt all the difficulties in the process so I surely support this law. Afterall this baby is gonna spent his/her entire life with these parents so they'll have plenty time to bond. Not everyone has rights in other countries like we do in SA.

2014-03-19 08:48:41.0 | 0 replies

Jinghu

@Rakgadi Tabeya - " talking from a motherly experience"? Haha. How could you? LOL

2014-03-19 08:57:02.0 | 0 replies

MasheleJ

@ Tabeya. Are you proposing that the surrogacy should only begin after the birth-mother has bonded with her child? That's, imho, cruel and totally unnecessary for either party. Motherhood should begin at the birthing. P'haps Sirndelide's advice should be followed to compensate for the failure of legislators to recognise that other issues are involved. If'n surrogacy events were more commonplace there certainly would be similar laws applicable. Thank you too, wittydiamond! for your support...

2014-03-19 10:15:20.0 | 0 replies

Mellow.Y?

@Tabeya Thats a bit harsh especially coming form a woman, as a mother you need that time to bond with your lil one its very cruel and unfair really. Already you bond with your child before being born the next thing you're told you don deserve a maternity leave. How is it exactly supposed to work? Even parents who adopts takes maternity leave to bond with the child so I also think that its kinda crazy to allow surrogacy but doesnt allow maternity leave for the mother

2014-03-19 11:49:34.0 | 0 replies

MommaC

It isn't only about the bonding. Babies need to be held and cuddled by a known person ..... and never underestimate the sleep deprivation

2014-03-19 12:22:47.0 | 0 replies

wittydiamond!

I REALLY WISH PEOPLE CAN UNDERSTAND THAT SOME OF THIS WOMAN WOULD HAVE LOVED TO CARRY THE CHILD BUT THEY CANT!!!!! I THINK ITS A BIT INSENSERTIVE TO MAKE SUCH LAWS, BECAUSE THERE IS A REASON WHY THEY CANT GIVE BIRTH... AND DENYING THEM TIME WITH THE NEW MEANING OF LIFE IS CRUEL

2014-03-19 09:11:31.0 | 1 replies

Mellow.Y?

True WttyD its very insensitive problem is they only looking at it from the companies point of view. They all interested in making money dont care about their employees at all. I promise you I'll opt for unpaid maternity leave anytime of the day than abandon my child for any company. Some ppl are cruel

2014-03-19 11:54:06.0 | 0 replies

Sirndelide

When the employee receives medical confirmation that the employee is pregnant, an employee may commence maternity leave at any time from 11th week before the expected week of confinement up to the date of birth. In the absence of medical evidence i.e. certificate of confinement there is no maternity leave. The UE law is correct. Upaid parental leave under Children Act and paid annual leave may be the only recourse.

2014-03-19 09:49:32.0 | 0 replies

MasheleJ

I hasten to add that I'm neither a "mother" or a father. My point, which I could've made clearer is that for a woman - so I've been informed by girlfriends for most of my life and it's no secret to anyone else - this is an extremely emotionally sensitive moment. And the thrice-damned politicians are too complacent and self-satisfied to recognise their own laziness... Now a huge amount of money gonna be wasted on lawyers et al to fix it via the courts.

2014-03-19 10:31:26.0 | 0 replies
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