CJEU - C 363/12 / Opinion Z v A Government Department and the Board of Management of a Community School

Key facts of the case:
  1. Surrogacy, an increasingly common form of medically assisted reproduction, constitutes a sensitive political and social issue in a number of Member States. The present request for a preliminary ruling from the Equality Tribunal (Ireland), together with the CD case, (2) attests to the topicality of surrogacy, despite its still relatively marginal role, and the complexity of the legal (and ethical) issues involved in regulating it. Indeed, the legislative landscape is varied in the Member States: surrogacy ranges from being legal and specifically regulated, to illegal or – as in the case of Ireland – unregulated, and there is considerable disparity between Member States as to how surrogacy arrangements and, in particular, the processes involved therein ought to be regulated.
  2. In the case before the referring court, a woman who is unable to support a pregnancy has had her genetic child through a surrogacy arrangement. As a matter of EU law, is she entitled to paid leave of absence from employment equivalent to maternity leave or adoption leave? That is the crux of the questions put to the Court in this case.
Results (sanctions) and key consequences of the case:
 
Accordingly, I propose that the Court answer the questions referred by the Equality Tribunal to the following effect:
  • Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) does not apply in circumstances in which a woman whose genetic child has been born through a surrogacy arrangement is refused paid leave of absence from employment equivalent to maternity leave and/or adoption leave.

Consideration of the questions raised has disclosed no factor capable of affecting the validity of Directive 2006/54.

  • Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation does not apply in circumstances, such as those of the case before the referring court, in which a woman who suffers from a condition that makes her unable to support a pregnancy and whose genetic child has been born through a surrogacy arrangement is refused paid leave of absence from employment equivalent to maternity leave and/or adoption leave. 
Consideration of the questions raised has disclosed no factor capable of affecting the validity of Directive 2000/78.
Paragraphs referring to EU Charter: 

 

69-73