This case is very similar in facts to Z v A Government Department and the Board of Management of a Community School [2013] AG's Opinion CJEU Case C 363/12. Notably the AG in this case adopted a completely different approach in their interpretation of the applicability of Directive 92/85 than AG Wahl. This case concerned the entitlement to maternity pay of a woman who had commissioned surrogacy. In her case this was not a genetic surrogacy arrangement, but the fact that the baby would not be genetically her offspring made no difference to the fundamental merits of the case.

The current domestic legislation for parents in this position (Maternity and Parental Leave Regulations 1999) provides that “persons to whom parental responsibility for a child born to a surrogate mother has been transferred pursuant to a parental order may receive unpaid leave under certain conditions.” AG Kokott concluded that as a worker within the meaning of Article 2 of Directive 92/85 (Pregnant Workers Directive), an intended mother has the right to maternity leave under Article 8.

The opposing side argued the general scheme of the Pregnancy Directive 92/85 suggests that a biological concept of motherhood is a prerequisite of applying the Directive. Although the AG rejected this, she did acknowledge that at the time the Directive was passed, surrogacy was not as prevalent a practice as it is today. The structure of Directive 92/85 takes biological motherhood as the norm which reflects the conventional practice at the time the Directive was passed. The AG further noted the position of surrogacy differs from adoption. In the latter, there is no bond between the adoptive mother and the 74 child prior to the birth of the child.

The AG therefore held the position of adoptive mothers is not sufficiently similar to surrogate mothers so to warrant the same protection under the Directive. But the AG was of a mind to take an expansionist view of the Pregnant Workers Directive, noting that not all the potential dangers listed in it affect intended mothers (as well as biological mothers). The AG noted a surrogate mother like a birth mother, is responsible for the best interests of the child. She held that the mothering role is shared between 2 women who are both deserving of protection under Directive 92/85 when appropriate.

As noted this decision differs entirely to the decision reached in Z v A Government Department and the Board of Management of a Community School so the CJEU will have to reconcile the decisions when faced with similar issues in the future. http://bit.ly/15GO2kI