Surrogacy and Maternity Leave – Recent Debates

A highly controversial decision with regards to a mother’s rights for maternity leave was recently made by the European Court of Justice (ECJ). In this particular case it was ruled that a new mother whose child was born through surrogacy was not entitled to maternity leave.

In the case of CD v ST, CD has become a mother via surrogacy agreement.  The baby was conceived using her partner’s sperm but not her ovum, therefore CD is also referred to as the ‘intended mother,’ or ‘commissioning mother,’ for the purposes of the case law. In accordance with UK legislation on surrogacy, the couple were given full and permanent responsibility for the child, the bond between mother and child was instant, with the commissioning mother breastfeeding the new-born within an hour of the birth.

When the claimant (CD) applied for some form of paid leave equivalent to maternity or adoption leave, the application was refused on the grounds that the child had not been adopted, and CD had not been pregnant. Therefore a claim was brought citing pregnancy and maternity discrimination at tribunal in the UK.

The Advocate General in this case, considered that whether or not the commissioning mother breastfeeds, if the commissioning mother takes the child into her care immediately after the birth; then she should have the right to receive maternity leave. Interestingly, a similar case also heard last year prompted a contrasting view from a different European Court Advocate General. In the case of Z v a Government Department and the Board of Management of a Community School, the Advocate General took the view that Pregnant Workers’ Directive only protects women who give birth. Nonetheless, both agreed that the topic of surrogacy is outside of the scope of general EU equal treatment laws and we have therefore been awaiting further comment on the above.

ECJ
The European Court has now concluded that breastfeeding is not in itself sufficient to entitle a woman to protection under the Pregnancy Workers’ Directive. It was also decided that only mother’s who have given birth are entitle to take maternity leave.

The Children and Families Act 2014
Whilst this case has highlighted the fact that a commissioning mother under a surrogacy arrangement may not be entitled to receive maternity pay under UK law, positively the UK has recognised such issues relating to surrogacy in the Children and Families Act 2014 which has now received Royal Assent. From April 2015, prospective parents who meet the criteria to apply for a parental order will be eligible for shared parental leave and pay, and statutory adoption leave and pay under the new shared parental leave regime which is to be introduced as part of the Act.

Whilst every effort has been made to maintain accuracy throughout this article, Nationwide Employment Lawyers cannot accept responsibility or liability for any errors. This article is intended for guidance purposes  only and does not constitute specialist legal advice. Nationwide Employment Lawyers accept no responsibility or liability whatsoever for any action taken or not taken in relation to this article and recommend that appropriate legal advice be taken in all circumstances.