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 the Netherlands, it is allowed to carry an embryo of an infertile couple but without taking a financial reward for surrogacy services. In Ukraine, all types of assisted reproductive technologies are allowed. Foreign couples who have faced infertility diagnoses actively use such procedures as egg donation and surrogate motherhood in Ukraine. According to the unofficial statistics, every month about 2 thousand pairs leave the Ukrainian capital with a child born with the help of a surrogate mother.

Some couples don’t leave the fact that a strange woman carries their child unrelated. Others, on the contrary, try their best to suppress such truth and even simulate pregnancy using a 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 legal maternity leave.

In practice, after giving birth, women need a child-care leave firstly to take care of a newborn baby, and secondly, to prevent possible risks associated with women’s health (which 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 the surrogate mother need post-natal maternity leave as much as women who became mothers naturally. Moreover, even if a 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 the natural act of delivery. Parents of children who were born with the help of surrogate motherhood do not always need maternity leave before the child’s birth, but it’s indispensable for them after the baby’s birth.

Therefore, the 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 based on 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 the 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 maternity leave. Men can use such prerogatives as well. Thus, Prince William took maternity leave along with his wife, Catherine. He refused to work for six weeks to focus all his attention upon his wife and child.