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

40(1) European Law Review 2015 pp. 52-69.

University of Leicester School of Law Research Paper No. 15-20

23 Pages Posted: 14 Jul 2015

See all articles by Eugenia Caracciolo di Torella

Eugenia Caracciolo di Torella

University of Leicester - School of Law

Petra Foubert

Hasselt University; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: July 12, 2015

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 in the cases of C.D. v S.T. 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, ultimately, values and promotes the role of care and, ultimately, the best interests of the child.

Keywords: pregnancy, maternity, surrogacy, ethics, EU law, CJEU, parental rights

Suggested Citation

Caracciolo di Torella, Eugenia and Foubert, Petra, Surrogacy, Pregnancy and Maternity Rights: A Missed Opportunity for a More Coherent Regime of Parental Rights in the EU (July 12, 2015). 40(1) European Law Review 2015 pp. 52-69.; University of Leicester School of Law Research Paper No. 15-20. Available at SSRN: https://ssrn.com/abstract=2629812 or http://dx.doi.org/10.2139/ssrn.2629812

Eugenia Caracciolo di Torella (Contact Author)

University of Leicester - School of Law ( email )

University Road
Leicester, LE1 7RH
United Kingdom

Petra Foubert

Hasselt University ( email )

Martelarenlaan 42
Hasselt, 3500
Belgium

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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