Human procreation is not longer what it used to be. While medical research has created a number of mechanisms that allow people to engage in sexual intimacy without a resulting pregnancy, it also allows those wishing to procreate but who are unable to do so biologically to have children. IVF and surrogacy in many ways challenge our conception of human procreation. Naturally, the law needs to adapt to these changes. Surrogacy in particular however raises a number of value-laden questions, which complicates the law’s response to these medical avenues. It is thus not surprising that no homogenous position exists between Member States on this issue.
In the CD and Z cases, the CJEU had to pronounce itself on how to reconcile surrogacy with an existing legal framework on maternity leave that did not account for motherhood resulting from that mechanism. More precisely, it was faced with the question of whether a mother who did not give birth to her own child, born via a surrogate, has a right to maternity leave under EU law. Family law is not a EU competence. Maternity leave is, however, regulated by the Pregnant Workers Directive (PWD) and some aspects arising out of motherhood and employment are addressed by the Sex Discrimination Directive. In Mayr, the CJEU had already clarified that the Sex Discrimination Directive is applicable to workers undergoing IVF that have not yet been successful.
In CD and Z, the Grand Chamber established that, as a matter of EU law, only women who themselves give birth to the child can benefit from maternity leave. Two Advocates General, Wahl and Kokott, issued opinions and came to opposed conclusions. The Court followed Advocate General Wahl in its judgment. Applying Mayr, it found that the PWD only applies to women who are in fact pregnant. The Sex Discrimination Directive was found not to be applicable either as the commissioning mother of a surrogacy agreement would be in the same position as a commissioning father. Having found that the question fell outside of the ambit of EU law, the CJEU also found the Charter of Fundamental Rights to be inapplicable. In the Z judgment, the CJEU further clarified that the Framework Equality Directive and its provisions on disabilities do not apply to women unable to become or carry out a pregnancy as the directive only targets disabilities that render a worker’s involvement in professional life more burdensome, which is not the case for medical conditions that prevent women from getting pregnant or carrying out a pregnancy.
Advocate General Kokott came to the opposed conclusion. Going beyond a literal reading of the directives, she argued that the women at issue should be able to benefit from – some – maternity leave. Indeed, most European legislations on maternity leave seem to be based on two rationales. First that a woman needs time to recover from the strains of pregnancy and childbirth, which undoubtedly does not apply to those that do not themselves carry out the pregnancy. Second, that a newborn needs permanent attention and care and that hence, in the interest of the child, mothers (and in ever more Member States also fathers) should be able to watch over them on a constant basis for the first weeks or months of their lives.
It is understandable that on an issue as delicate as surrogacy, the CJEU attributes wide deference to national legislators; yet one must wonder if the better solution in this context would not be to recognize that Member States are free to outlaw surrogacy (which for many of them is in fact the case) but to hold that if it is legal the parents must be able to enjoy the same amount of parental leave than other parents do under domestic law to look after their newborn. This would recognize that the woman in question does not need the time off foreseen to recover from childbirth but still would allow her to spend the same amount of time with the newborn, which ultimately is for the benefit of the latter. Some national legislations allow women to take extra time off work if they breastfeed.
Advocate General Kokott’s opinion is very much based on this double rationale. She recognizes that the legal mother started ‘mothering’ and breastfeeding the newborn within an hour of the birth and continued the breastfeeding for three months. Whereas the Advocate General recognizes that surrogacy is a phenomenon unknown to the PWD, she identifies that one of the motivations behind it is to ‘protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth’. In concluding that a woman who did not carry out her own child should nonetheless be able to take maternity leave as
‘precisely because she herself was not pregnant, she is faced with the challenge of bonding with that child, integrating it into the family and adjusting to her role as a mother. This ‘special relationship between a woman and her child over the period which follows pregnancy and childbirth’ warrants protection in the case of an intended mother in the same way as it does in the case of a biological mother.’
Bearing in mind the double rationale of behind maternity leave, she suggests that it may be spilt between the woman who gives birth (who gets time off to recover from pregnancy and childbirth) and the legal mother (who gets time off to care for and bond with the newborn). This appears to be a realistic conclusion, given that parents who adopt get such time.
Advocate General Kokott’s opinion is a convincing one. Surrogacy is a sensible topic and Member States are and remain free to outlaw it. If a Member State however decides to legalize the practice, the child born as a result of the procedure should be able to benefit from the same attention and care during the first weeks and months of his or her life as any other baby.