On 26 September 2013, 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 CJEU 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 it whether the refusal to grant the woman paid leave from employment constituted a breach of EU anti-discrimination rules.

In his Opinion, Advocate General Nils Wahl distinguished the case from the situation of a pregnant worker falling under the scope of the Pregnant Workers Directive which provides for maternity leave of at least 14 weeks in order for a woman to recover from childbirth and take care of her newborn.

According to the Advocate General, the differential treatment at the expense of the woman was neither based on sex nor on disability, but rather on the refusal of national authorities “to equate her situation with that of either a woman who has given birth, or an adoptive mother”. He outlined 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. Advocate General Wahl also added that where national law foresees the possibility of paid adoptive leave, the national court should assess whether the application of differing rules to adoptive parents and to parents who have a child through a surrogacy arrangement constitutes prohibited discrimination contrary to that national law.

The case of CD v ST (C-167/12), originated in the UK, where a woman took legal proceedings before the English courts when she was denied paid maternity or adoptive leave on the basis that she had a child via surrogacy. The UK does not have specific rules on maternity leave for the woman who assumes responsibility for the child’s care after it is born, who is described as the ‘intended mother’.

However, Advocate General Juliane Kokott took a different view. Advocate General Kokott said that an intended mother who has a baby through a surrogacy arrangement has the right to receive maternity leave provided for under EU law. However, she caveated that maternity leave which the surrogate mother has taken must be deducted from the leave of the intended mother. In any case, the leave of the intended mother must amount to at least two weeks. Both the surrogate mother and the intended mother must be given at least two weeks of paid leave each, Kokott said. 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".

The Advocate Generals opinions are not binding on the CJEU but it more often than not (80% of cases) follows the advice in its final rulings. With this marked divergence of legal opinion, it will be interesting to see what transpires in those final CJEU rulings.

In the Irish case, Advocate General Wahl has left an opening for the national court to assess whether differing rules constitute discrimination where adoptive leave is paid. In Ireland an adopting mother or sole adopting father is currently entitled to 24 weeks’ paid adoptive leave. This means that it is likely that the Irish courts will be required to reassess this case in light of this point.