Archives for March 2014

Two Decisions Affect Intended Parents’ Right to Maternity Leave

The European Court of Justice (ECJ) for the European Union has ruled that Intended Mothers relying upon a surrogate may not be entitled to maternity leave. This ruling is a response to two cases where the Intended Mothers, one from the UK and the other from Ireland, were denied maternity leave. (See article of Irish genetic mother here)

The ECJ (See judgment) based its decision on three key points: 1) Maternity leave is given under the supposition that the person seeking it was pregnant and gave birth and therefore it does not apply to Intended Mothers, even if the Intended Mother is genetically related and/or breastfeeding the baby; 2) Refusing maternity leave is not discriminatory on the grounds of sex since an Intended Father is not entitled to it either; and lastly, 3) Refusing maternity leave does not infringe upon a person’s right under the Employment Equality Framework Directive since the inability to bear one’s own child is not a “disability” as it pertains to the workplace and the directive.

The ECJ did mention that the EU sets a minimum standard here and that the member states can apply more favorable rules for Intended Mothers if they wish.

Interestingly, the UK is taking legislative action regarding maternity leave for Intended Parents. Unlike the EU however, the UK’s Children and Families Bill (which will take effect starting 2015) grants Intended Parents the same rights off work to care for their children as other parents. This law puts the Intended Parents on equal footing as other parents and recognizes that all parents need that time to care for their children.

As the laws continue to catch up to technology, it will be interesting to see how these two decisions will influence the rulings to come.

Another Cautionary Tale for DIY Surrogacy

A UK surrogacy case has resulted in legal chaos and paternal uncertainty yet again. In this case, a husband and wife inseminated a good friend of theirs with the husband’s sperm. The parties did not consult or use a lawyer, physician, or a counselor, nor did they seek any other type of professional advice before commencing. They felt comfortable with their informal surrogacy arrangement and went forward with it.

The peaceful arrangement was short lived. The couple separated after the birth and when the Intended Mother tried to assert her rights, everything fell apart.

In the UK, without an adoption or a timely parental order, the birth mother is the natural mother. Ultimately, since neither an adoption or a parental order were done in time, the birth mother was able to retain rights to the child.

It is important to note that there were many missteps present here. In addition to the legal uncertainty and risk of doing a surrogacy without professional medical intervention, the parties also ignored the laws of their jurisdiction. So, not only was the surrogacy not medically appropriate, but even if it had been, they had no legal foundation to secure the appropriate parental rights.

The appropriate legal professionals should always be consulted before embarking on a surrogacy for the good of all parties involved.

Read the article here.