Last month, the Supreme Court of Spain issued a landmark ruling that recognizes the right to paid maternity leave for parents of children born through surrogacy. Although gestational surrogacy is illegal in Spain, the Court held that the need to take care of children outweighs any legal barriers set forth by Spain’s surrogacy ban. The decision also extends various rights to mothers of children born through surrogacy, such as a reduced workday for nursing mothers and the right to take one year of unpaid leave after the maternity leave. Spaniards who seek to build their family through surrogacy must go abroad, and two such scenarios, one involving a surrogacy arrangement in the United States and the other in India, set this case in motion. In October, Spain’s congress also voted to equalize paternity and maternity leave, awarding fathers the same sixteen weeks of paid maternity leave that mothers receive.
The decision comes at a time when the issue of maternity benefits is in the spotlight in the United States. A New Jersey woman is suing her former employer, Verizon Network Solutions, for denying her paid maternity leave when she had children through surrogacy in 2013. Various arguments exist for both sides of the issue. For example, some posit that since mothers of children born to a gestational surrogate did not give birth, they do not need time to recover physically. This argument is often used to justify the denial of extended paternity leave for fathers. On the other hand, proponents of maternity benefits for mothers of children born through surrogacy contend that a new mom needs time to bond with the baby, especially when she did not carry the child.
Although the Verizon lawsuit is one of the first of its kind (there was a federal lawsuit to claim benefits for paid leave by a woman who had children through surrogacy in 2011, but the case was ultimately dismissed), this issue is likely to become more prevalent as gestational surrogacy continues to grow as a family-building option. Stay tuned to our blog for more discussions on emerging reproductive law issues.