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Surrogacy – some births are more equal than others

In 1978 the birth of Louise Brown the first “test tube baby” was worldwide news. Now in vitro fertilisation is a well-known treatment. However, IVF is not always suitable so surrogacy is an alternative – in essence a woman carrying a child for someone else and handing that child over to its “parent(s)” immediately after the birth.

The legal status of children born by surrogacy was clarified in 2008 by the Human Fertilisation and Embryology Act. This, subject to a number of conditions, allows a couple to apply to a Court for a parental responsibility order which means that the child is treated in law as their child.

So the law gives surrogate births equal status – well yes and no – it depends for what purpose. The CJEU (Court of Justice of the European Union) has just given its decision in two cases (one from the UK and the other from Eire) as to the rights of the “intended/commissioning mother”.

In relation to the UK case the key questions the CJEU was asked to determine were:

1. Does the intended mother have the right to maternity leave? No, says the CJEU. Following a detailed analysis of EU Directives and UK law the basis of this part of the decision was that as the “intended mother” had never been pregnant she was not entitled to any form of maternity leave.

2. Is the failure to give/refusal of the right to maternity leave a form of sex discrimination? Again no, says the CJEU. It is not direct discrimination – the intended/commissioning father and mother are treated in the same way. Equally there is no indirect discrimination because the refusal of maternity leave to the intended mother does not put women at a particular disadvantage.

In the Eire case an additional issue arose because the intended mother was physically incapable of giving birth having no uterus. The question posed was, did the refusal of the right to take maternity leave constitute disability discrimination? Having considered EU Directives and the UN Convention on the Rights of Persons with Disabilities, this claim was also rejected. In simple terms the CJEU decided that for the purposes of EU law “disability” related to a limitation which hinders an individual’s “full and effective participation in professional life on an equal basis with other workers”. Tragic though the circumstances of this individual were they did not affect her ability to work.

Whilst the decisions are technically correct it is questionable whether they accord either with the spirit of the legislation or the realities of life in the twenty first century. The EU legislation is framed with an emphasis on health and safety; it specifically refers to the protection of mothers who are breastfeeding. Although she had not given birth, the intended mother in the UK case was breastfeeding the child but this did not trigger the protection because she had not been pregnant. On the wider front while there are no reliable statistics on surrogacy in the UK it is now a known and accepted practice.

So where do we go from here? Well there is change on the horizon; the government has indicated that from 2015 intended parents are to have the right to (1) attend two antenatal appointments with the surrogate (2) receive statutory adoption leave and pay and (3) receive flexible parental leave and pay. No doubt the regulations will be complex so watch this space for further news.

Had to deal with surrogacy issues? Tell us about your experiences and post a comment. Questions? Contact us using our Get in Touch form.

 

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further