Hot on the tail of UK soap opera Coronation Street’s recent surrogacy plot line (so I have been told) are two recent Advocate General opinions on the topic of intended mothers’ rights to maternity leave under the EU Pregnancy Working Directive (PWD). Unhelpfully, one opinion states that intended mothers are entitled to maternity leave and the other that they are not.  Who said the law was an exact science?

The PWD states that all workers in the EU are entitled to at least 14 weeks’ maternity leave if they: (1) are pregnant, (2) have recently given birth and/or (3) are breastfeeding. However, there is no specific provision in the Directive covering the surrogacy scenario and so, in two separate recent cases, national courts of EU member states have referred the matter to the European Court of Justice (ECJ).

Prior to any ECJ ruling there is generally an Opinion by one of the eight Advocates General with the intention to guide the Court. However, the Court can choose whether to follow the opinion or not and does not invariably do so.  On 26 September 2013, AGs Wahl and Kokott delivered their separate Opinions in those two cases. It was not immediately clear whether either of them had discussed their own case with the other. Either that or they had just chosen to ignore the other. Perhaps the two AGs are not regular lunch companions at the ECJ canteen in Luxembourg. In any event, the Opinions have added no clarity to the question at all.

In AG Juliane Kokott’s Opinion, an intended mother who receives a baby via a surrogacy arrangement does have the right to maternity leave under the PWD, whether or not she intends to breastfeed the child. Particular attention was paid by this AG to the importance of protecting the special relationship between a woman and her new baby; to the intended mother being wholly responsible for the child; and to the need to bond (which was said to be even more challenging and necessary where she is not the natural mother). The AG noted that if intended mothers were denied leave for this, this would be to the detriment of children raised by surrogate mothers. It was made clear however, that there should not be a doubling of maternity leave entitlement and therefore the leave taken by the actual mother must be deducted.

In AG Nils Wahl’s Opinion, however, an intended mother does not have the right to maternity leave under the PWD.  He stressed that the purpose of the protection afforded under the PWD was the health and safety of workers, not their children or intangibles such as the mother-baby bonding process. In relation to the importance of the “special relationship”, he said that this was only in the context of the physical processes of childbirth and breastfeeding.

So where does this leave us? Neither of the above Opinions is yet binding law and it will be for the ECJ to decide which approach, if either, it follows. However, the decision is likely to be some months away. It is clear that there is a gap in the protection of intended mothers under a surrogacy arrangement by comparison with adoption. Legislation would ideally be enacted, though this is unlikely to be at EU level given the difference of opinions in relation to surrogacy across the EU member states – in France, for example, surrogacy arrangements are still unlawful.  We therefore await the ECJ decision with interest.

Unfortunately, the Coronation Street storyline does not give away the scriptwriters’ thoughts in relation to this issue. Tina became the surrogate mother of Gary and Izzy’s baby. After the premature birth of the child, Tina did not use her full maternity entitlement since she was (possibly straight after the conclusion of her two week compulsory leave) back pulling pints in the Rovers Return. No risk of the doubling of maternity leave there, then.  What a shame that the Coronation Street writers chose not to discuss this issue in detail. It may be that the ECJ could do with the additional guidance on the point!