Rich-Vaughn-Blog-European-Court-Surrogacy

EU Denies Paid Leave for New Moms Via Surrogacy; U.K. Does Opposite

A recent ruling by the European Court of Justice (ECJ) denied the claims of two mothers via surrogacy who had petitioned their employers for maternity leave and had been refused. The two cases, which were referred to the high court of the European Union by a UK and an Irish employment tribunal, concerned two women who had become mothers via surrogacy. One of the women also is the genetic mother of her child. Both women were denied paid maternity or adoption leave by their employers.

The ECJ ruled that the Pregnant Workers Directive, the EU law governing maternity leave, is only applicable to women who become pregnant and give birth to their children. Intended mothers via assisted reproductive technology, are ineligible for the paid leave.

[T]he objective of that directive is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding, such workers being considered a specific risk group. In that directive, the provision relating to maternity leave expressly refers to confinement, and its purpose is to protect the mother in the especially vulnerable situation arising from her pregnancy. The Court adds that although maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, that objective concerns only the period after ‘pregnancy and childbirth’. It follows from this that the grant of maternity leave pursuant to the directive presupposes that the worker concerned has been pregnant and has given birth to a child. Therefore, a commissioning mother who has used a surrogate mother in order to have a child does not fall within the scope of the directive….

While the court ruling exempts EU employers from the mandate to grant paid maternity leave to mothers via surrogacy, it also states that member nations may establish their own rules providing a paid leave benefit to intended mothers via assisted reproductive technology.

The ECJ also ruled that the employers’ denials of maternity leave to the two women did not violate European Union laws prohibiting discrimination on the basis of sex or disability.

As regards the Equal Treatment Directive, the Court finds that a refusal to grant maternity leave to a commissioning mother does not constitute discrimination on grounds of sex, given that a commissioning father is not entitled to such leave either and that the refusal does not put female workers at a particular disadvantage compared with male workers….

Lastly, as regards the Employment Equality Framework Directive which prohibits any discrimination on the ground of disability in employment and occupation, the Court considers that it cannot be disputed that a woman’s inability to bear her own child may be a source of great suffering for her. However, the concept of ‘disability’ within the meaning of that directive presupposes that the limitation from which the person suffers, in interaction with various barriers, may hinder that person’s full and effective participation in professional life on an equal basis with other workers.

In contrast was action taken, on the same day, by the United Kingdom (also a member of the EU). The UK Parliament ratified the Children and Families Act 2014, to take effect in 2015, that will give intended parents via ART the same right to paid maternity leave and protection from job loss guaranteed to other U.K. parents. The law was passed after a five-year campaign by family law and ART advocates in the U.K. For more on the successful U.K. effort, visit the blog of my colleague, U.K. family law attorney Natalie Gamble.

The juxtaposition of these two events, one denying intended parents equal rights and protection under EU law, the other extending to intended parents the same benefit afforded by U.K. law to all new parents, offers a birds-eye of the legal landscape worldwide: While in many places laws governing parentage and family formation lag sadly behind the rapidly advancing technology of ART, we see that change is happening for the better, and that more and more ART families are receiving equal treatment under the law. For me it’s an exciting time to practice in this field of law; for intended parents it’s yet another reminder that experienced, knowledgeable legal counsel is essential.

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.