Gay couple endure 'Kafkaesque' fight for EU parental leave
When husbands Dan Sobovitz and Grégory Merly became fathers on 16 June 2019 -- Father’s Day in the US, where their twin sons were born through surrogacy -- they were ready for the sleepless nights and mountains of diapers. But they had not expected the uphill battle that claiming their parental leave at work had become.
A year later, as their sons Theo and Yuli just turned one, Sobovitz told Dailyrater about their unique path to fatherhood and how it led them to sue the European Parliament in the General Court of the European Union for discrimination against same-sex couples.
In 2019, the couple lived in Brussels, where both were staff at the European Union institutions: Merly, a French citizen, worked as a parliamentary assistant at the EU Parliament and Sobovitz, a Hungarian-Swiss-Israeli national, was part of the team of the EU Commission Vice President.
After concluding their surrogacy agreement in 2018, in which an American surrogate was to give birth to two eggs from an anonymous donor, each fertilized with one spouse’s DNA, both had gone to their institution to ask for leave to care for their soon-to-be-born sons.
“We found out that the EU institutions only allowed women to take paid leave when they become parents,” Sobovitz said. After 10 days of what is usually called “special leave for the birth of a child” he added, “men are supposed to go back to work.”
“We considered it be a discrimination against men who want to share the raising of children, against women who want to go back to work earlier and rely on their male spouses, and especially against gay couples, given that there’s no mother in our case,” said Sobovitz.
As Merly and Sobovitz found, internal parental leave policies vary from one EU institution to the other.
After months of back-and-forth, the EU Commission granted Sobovitz the 25 weeks he asked for, which is the leave length for women who have twins.
Since 2012, the Commission’s standard practice was “to grant, on an ad hoc basis, leave equivalent to the 20-week adoption leave to staff that become parents through surrogacy.”
In March 2020, the EU Commission made this ad hoc rule the norm, due in part to the couple's case: “Experience has shown that, (...) in some cases of parenthood the conditions for maternity or adoption leave to be granted were not met when a newborn child arrived in a household,” the decision noted.
It wasn't so easy for Merly at the European Parliament. He was granted “10 days parental leave for the birth of one biological child and another 10 days for the adoption of the non-biological child”, which Sobovitz described as a “slap in the face”: the Parliament was not considering the two sons equally due to only one having Merly’s DNA.
A spokeswoman for the European Parliament told Dailyrater that it “looks into each personal situation individually since there are a number of personal factors that can determine some differences to the length of the leave” and that “diversity and non-discrimination are core values for Parliament”.
The Parliament has said that it is ready to “engage in an inter-institutional dialogue to find a common approach among all EU institutions”.
“My husband in the European Parliament was refused the same rights I was granted,” Sobovitz said. “Our struggle is to ensure this would be an automatic right for all same-sex parents across all EU institutions.”
The European Council told Dailyrater it hasn't had a similar case, but that under current rules staff who become parents through surrogacy would be granted the same as adoptive parents, 20 weeks' paid leave.
The couple consulted the European Ombudsman, who in October 2019 called for all EU institutions to “adapt their internal rules” on leave rights and make them “clearly defined and aligned with those of other staff members who become parents”.
The couple decided to claim Merly’s Parliament leave rights to the General Court of the European Union.
The court refused to intervene, arguing the couple still had procedure options in Parliament: Merly had claimed leave before the birth instead of after, and should do so again.
But as Merly’s contract with the European Parliament ended shortly after the court’s decision, they couldn’t start a new Parliament procedure. And a lengthy process started after the birth would not have granted him leave in time to care for the babies anyway.
“A Kafkaesque situation,” Sobovitz summarised.
Speaking on the phone, Sobovitz sounded like all new fathers: exhausted but very happy. After their sons were born, the couple moved to Berlin. Sobovitz said they chose Germany for its good quality of life and because since 2014, German law recognises US court orders defining a child’s legal parents.
The legal headaches aren’t over, however: Merly, a French citizen, is still in the legal process of getting French citizenship for their two sons. Until then, the children are Americans, not Europeans, which complicates any travel abroad and means they need regular visa renewal. “It dawned on me that at almost every step of their administrative lives, we will have to fight because we don’t fall in the common definitions,” Sobovitz said. “I did not expect that.”
He spoke of his “disappointment” in the EU institutions, which he “thought very highly of”. “We couldn’t believe how hard they would fight against us. This was not a gay rights fight, it was a gender equality fight. It makes no sense to have only women take care of kids, to force them to slow their career, and not to allow men to share. In our case, the absurdity was even clearer, because there is no mother.”
He laughed: “And yet obviously, someone has to stay with the kids!”