Care in Family Relations : The Case of Surrogacy Leave

Article English OPEN
Burri, Susanne (2015)

The advance of reproductive technologies, like surrogacy arrangements, confronts courts with new demands and dilemmas. This contribution analyses the potential of EU law towards a better and more balanced reconciliation of work, private and family life when no national law applies. In two recent cases of the Court of Justice of the EU on leave for surrogacy mothers, the Advocates General Kokott and Wahl published diverging opinions on similar prejudicial questions of national courts. These opinions illustrate some difficulties in applying the EU concept of equality and interpreting the scope of relevant EU law on leaves. The Court followed a cautious approach, which is not surprising given the lack of consensus on surrogacy arrangements in the member states and their legal implications. Developments in society and technologies in relation to motherhood, fatherhood and parenthood give rise to new legal questions. However, the existing EU legal instruments in this field were not designed to address questions such as for example surrogacy leave for commissioning mothers and fathers. A modernisation of the EU instruments in the light of societal, technological and legal developments in the member states would provide an opportunity to remedy some gaps in the existing EU legal framework on reconciliation issues. In a society where participation in the labour market of both women and men is increasing and getting more balanced, the need to address care of children, older people and disabled people becomes more urgent.
  • References (18)
    18 references, page 1 of 2

    European Commission, Progress on equality between women and men in 2013.A Europe2020 initiative, European Union 2014, p. 3 and p. 9.

    See for example the Resolution of the Council of 29 June 2000 on the balanced participation of women and men in family and working life, OJ 2000 C 218/2.

    Case C-167/12 C.D. v. S.T. and Case C-363/12 Z. v. A. Government Department,judgements of 18 March 2014, not yet published.

    See for example W. van Hoof & G. Pennings, 'Extraterritorial Laws for Cross-Border Reproductive Care: The Issue of Legal Diversity', EuropeanJournalof Health Law, 2012, pp. 187-200.

    See on international commercial surrogacy for example: Y. Ergas, 'Babies without Borders: Human Rights, Human Dignity, and the Regulation of International Commercial Surrogacy', Emory InternationalLaw Review, Vol. 27, 2013, pp. 117-188 and J. Tobin, 'To Prohibit or Permit: What Is the (Human) Rights Response to the Practice of International Commercial Surrogacy?', Internationaland ComparativeQuarterly,Vol. 63, No. 2, 2014, pp. 317-352.

    18 Judgment of 26 February 2008, Case C-504106, Sabine Mayr v. Backerei und Konditorei Gerhard Fl6ckner OHG [2008] ECR 1-1017. In this case, the Court considered that if it is established that a dismissal is essentially based on the fact that a woman has undergone IVF treatment, the dismissal is contrary to Directive 76/207 (now repealed by Directive 2006/54).

    19 Paras. 55-59.

    20 Paras. 69-76, at 73.

    21 See para. 34; Case C-5112, Marc Betriu Montull v. Instituto Nacionalde la SeguridadSocial (INSS), of 19 September 2013, nyr.

    22 Paras. 51-57.

  • Metrics
    No metrics available
Share - Bookmark