European & International News

ECJ opinion: surrogacy does not allow for adoption leave

(Brussels 26 September) The European Court of Justice has issued an opinion that woman who had child through a surrogate is not entitled to adoption leave.

The opinion, delivered by Advocate General Wahl, discusses the various questions put to it by the Equality Tribunal in Ireland. An analysis is given of the issue of surrogacy, providing the societal context of the present case, the key (legal and factual) aspects of surrogacy, as understood by the Advocate General Wahl.

In remarks in his concluding moments, he continued "notwithstanding the conclusion I have reached above, I have considerable sympathy with the difficulties that commissioning parents undoubtedly face because of the legal uncertainty surrounding surrogacy arrangements in a number of Member States. However, I do not believe that it is for the Court to substitute itself for the legislature by engaging in constructive interpretation that would involve reading into Directives 2006/54 and 2000/78 (or, indeed Directive 92/85) something that is simply not there. That, in my view, would amount to encroaching upon the legislative prerogative."

"Indeed, construing an entitlement to paid leave of absence from employment judicially would entail taking a stand on questions of an ethical nature, which have yet to be decided by legislative process. If extending the scope of protection of maternity or adoption leave (or indeed creating a separate form of leave for surrogacy arrangements) is considered to be socially desirable, it will be for the Member States and/or the EU legislature to put in place the necessary legislative measures to attain that objective."

More information and the entire judgement is available here.

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