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Abstract
This article examines the decision of the Court of Justice of the European Union (CJEU) in Z v A Government Department and the Board of Management of a Community School and the court’s interpretation of existing EU legislation on whether commissioning or intended mothers are entitled to paid leave equivalent to maternity benefit. It highlights the failure of the CJEU in this case to call for specific EU legislation on the issue of surrogacy. The Irish Courts have been more proactive in this regard. The Supreme Court has acknowledged that ‘pending the introduction … of legislation dealing with this field, it is … not for the courts to attempt to resolve the complex questions that need to be addressed’. This article compares recent decisions of the Irish Courts to that of the CJEU as they struggle to keep abreast with modern society in the absence of legislation at national and EU level.
Notes
1. 2015 IEHC 419.
2. Ibid para [146].
3. Equal Status Act 2000 Number 8 of 2000. Available at http://www.irishstatutebook.ie/eli/2000/act/8/enacted/en/html
4. The State (at the Prosecution of Leontis Nicolaou) v. An Bord Uchtala 1966 IR 567.
5. McGee v Attorney General [1974] IR 284.
6. Murray v Ireland [1985] IR 532.
7. 1965 IR 294.
8. Ibid. at p 333.
9. Article 41 2 1° – In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. This provision has caused controversy as it is viewed as being of its time and misogynistic in modern society.
10. Pursuant to s.60(8) of the Civil Registration Act, 2004
11. S.60 of the Civil Registration Act, 2004.
12. The Ampthill Peerage case [1977] AC 547.
13. Ibid at 577.
14. Ibid.
15. Ibid. at 577.
16. See, for example, s.54 of the Human Fertilisation and Embryology Act 2008 in the UK. Judge O’ Donnell was referring specifically to genetic mothers in this case. In his view ‘[n]ow that DNA testing is available, that means that genetics determine parenthood, and more specifically, motherhood’. He did not consider the position of commissioning mothers that may not be genetically related to the child.
17. M.R and Others v An tArd Chlaraitheoir [2014] IESC 60. http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/516ac26fc227e31780257d890055587a?OpenDocument[38].
18. To-date this section of the Act has not been commenced.
19. S.9 of the Children and Families Relationship Act – the intending mother must consent before the procedure is performed to the application and confirm that she understands that she will become the mother of the child. This the model that has been also proposed by some in relation to how the issue of parentage in surrogacy cases should be determined. See Brian Tobin ‘Forging a surrogacy framework for Ireland: the constitutionality of the post-birth parental order and pre-birth judicial approval models of regulation’ (2) 2017 Child and Family Law Quarterly.
20. Carol Coulter, Why surrogacy has nothing to do with same-sex marriage Surrogacy in UK is mainly used by heterosexual couples not gay counterparts. The Irish Times, Monday, 27 April 2015. These figures, which indicate that 80% of applicants for parental orders were heterosexual couples, and the majority of those were married, are based on information gathered by University of Huddersfield Repository. It has to be acknowledged however, that all intended parents may not apply for parental orders and prior to the Human Human Fertilisation and Embryology Act 2008, only married parents could apply.
21. M.R and Others v An tArd Chlaraitheoir [2014] IESC 60. http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/516ac26fc227e31780257d890055587a?OpenDocument[114].
22. Article 42A of the Irish Constitution.
1 the state recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
2 1° in exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their chidren (sic) to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the state as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2° Provision shall be made by law for the adoption of any child where the parents have.
failed for such a period of time as may be prescribed by law in their duty towards the child.
and where the best interests of the child so require.
3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
4 1° Provision shall be made by law that in the resolution of i brought by the state, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudically (sic) affected, or ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
23. Opinion of Advocate General Wahl delivered on 26 September 2013 Case C-363/12 Z. v A Government Department and the Board of Management of a Community School [37].
24. Articles 1 & 2 Directive 2006/54/EC – equal opportunities 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 (OJ 2006 L 204, p. 23) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, 16), and also the validity of those two directives.
25. In accordance with Article 1 of Directive 92/85, the purpose of that directive is ‘to implement measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding’.
The eighth recital in the preamble to Directive 92/85 emphasises that pregnant workers and workers who have recently given birth or who are breastfeeding constitute a specific risk group and that there is a need to take measures to ensure their safety and health.
According to the 14th recital, the vulnerability of pregnant workers and of workers who have recently given birth or who are breastfeeding makes it necessary for them to be granted the right to maternity leave.
Under Article 8, Member States are required to take measures to ensure that workers within the meaning of Article 2 (pregnant workers and workers who have recently given birth or who are breastfeeding) are entitled to a continuous period of maternity leave of a least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice.
Article 11(2) provides, in relation to the period of maternity leave governed by Article 8, that a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2 must be ensured during the period of maternity leave.
26. See decision in Case C-167/12 C.D. [2014] ECR delivered by the CJEU on the same day as Ms. Z’s case.
27. Emphasis added.
28. Emphasis added.
29. Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention of the Rights of Persons with Disabilities, OJ 2010 L 23/35. The Convention does not contain a definition of disability, but affirms the social model in Article 2. Significantly, the Preamble also notes that disability is an evolving concept and that ‘disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others’.
30. C-337/11 HK Danmark [2013] ECR [38] Emphasis added.
31. Ibid at [39].
32. Ibid.
33. Para 47 Emphasis added.
34. Ibid [47].
35. Para 67.
36. Ibid [120].
37. Ibid.
38. See Salford, Hollingsworth, and Gilmore (Citationin press
39. Case C-167/12 C.D. v S.T Opinion of Advocate General Kokott delivered on 26 September 2013. [48].
40. Ibid [46] See also C-184/83 Hofmann v Barmer Ersatzkasse.
41. California.
42. S 8 (3) of the Adoptive Leave Act 1995 refers to ‘an employed adopting mother (or sole male adopter)’.
43. Section 5(1) of the Act.
44. Emphasis added.
45. Emphasis added.
46. UN Committee on the Rights of the Child, General Comment No.7. (2005 Implementing the Rights of the Child in Early Childhood) <http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/GeneralComment7Rev1.pdf>.
47. Ibid [6 b].
48. See also C-184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047 [25] – To protect health but also to protect the relationship. Also referred to as the ‘very delicate initial period’ post adoption in C-163/82 Commission v Italy.
49. Case 163/82 Commission v Italy ECR 3273.
50. UN Committee on the Rights of the Child, General Comment No.16 (2013) on State Obligations regarding the impact of the business sector on children’s rights, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f16&Lang=en[20].