Maternity leave for parents of surrogate children

Surrogate motherhood has split the world into two camps – “in favor” and “opposed”. Surrogacy conduction is prohibited by local law for example in Germany, Austria, Norway and Spain. In such countries as Australia, Great Britain, Denmark, Israel, Sweden, Canada and Netherlands it is allowed to carry embryo of infertile couple but without taking a financial reward for surrogacy services. In Ukraine all types of assisted reproductive technologies is allowed. Foreign couples who have faced with the infertility diagnose actively use such procedures as egg donation and surrogate motherhood in Ukraine. According to the unofficial statistics, every month about 2 thousand pairs leave only Ukrainian capital with a child born with the help of surrogate mother.

Some couples don’t leave the fact strange woman carries their child unrelated. Others on the contrary – try their best to suppress such truth, and even simulate pregnancy using fake pregnant belly. It’s known pregnant women have a right to maternity leave before and after childbirth. And what about those women who got a baby from a surrogate mother?

The EU legislation does not contain rules which oblige European states to provide women who have used surrogate mother’s services with a legal maternity leave.

In practice, after giving birth woman need a child-care leave firstly to take care of a newborn baby, and secondly – in order to prevent possible risks associated with women’s health (with can appear during pregnancy and childbirth).

With the course of time and great popularity of surrogacy programs it has been developed that women who have recourse to the services of surrogate mother are need of post-natal maternity leave as much as women who became mothers in a natural way. Moreover, even if woman has not given birth, she must take care of a newborn from the first days of his life. That is it’s the same as after natural act of delivery. A good rule of thumb is parents of children who were born with the help of surrogate mother not always need maternity leave before child’s birth but it’s indispensable for them after baby’s birth.

Therefore, Court of Justice of the European Union has rendered the following judgment: “Pregnant Workers Directive: In respect of this Directive, the Court finds that a female worker who as a commissioning mother has had a baby through a surrogacy agreement does not fall within the scope of this Directive and the Member States are no required to grant such a worker a right to maternity leave on the basis of this Directive. The reason is that the purpose of the maternity leave provided for in Article 8 of the Directive is to protect the health of the mother of the child in the especially vulnerable situation arising from her pregnancy. This protection concerns only the period after “pregnancy and childbirth”. Thus the application of this Directive presupposes that the female worker entitled to such leave has been pregnant and has given birth to a child. The Court states, however, that this Directive provides for minimum standards in respect of protection of pregnant workers. Consequently, Member States are free to apply more favorable provisions covering also commissioning mothers who have had a baby through a surrogacy arrangement”.

As practice shows, not only women need a maternity leave. Men can use such prerogative as well. Thus, Prince William took maternity leave along with his wife Catherine. He refused to work during six weeks in order to focus all his attention upon his wife and child.