Surrogacy, Pregnancy and Maternity Rights: A Missed Opportunity for a More Coherent Regime of Parental Rights in the EU

Abstract

Over the years, the EU has been successful in creating a framework where pregnancy and maternity in the workplace are acknowledged and protected. Such a framework, however, fails to regulate situations such as surrogacy. The latter raises complex ethical and legal issues that have been addressed in very different ways at national level. Lack of a common position has meant that the rights that women have in to relation to surrogacy in the workplace have been ignored at EU level. This article maintains that one of the main difficulties in addressing it is the traditional understanding of who is perceived to be a mother. Women are de facto afforded rights because they are biological mothers, and this excludes surrogacy. The debate has recently been highlighted by the decisions of the Court of Justice of the European Union (CJEU) in the cases of CD v ST and Z v Government Department and the Board of Management of a Community School. Interestingly, the two Advocates General reached different conclusions, one emphasising health and safety and the other the equality aspect of the debate: neither of these Opinions offered a clear solution, yet both indicate possible ways forward. The Court ignored these suggestions and reached disappointing, albeit technically flawless and entirely predictable, decisions. Against this background, this article argues that the time is now ripe for a more coherent regime of parental rights in the EU where the focus should shift from the mere biological/gestational connotation of motherhood to emphasising the different sides of “being a mother”, and more generally “being a parent”, including a caring relationship between the parent(s) and the child. Accordingly, it concludes that the EU is in urgent need of a complete set of legal rules that looks beyond how families are constructed and values and promotes the role of care and, ultimately, the best interests of the child.