Media Briefing Note: Women who Have Children by Surrogate Mothers may be Entitled to Maternity Leave Under European law

LONDON, 26 September 2013 - The European Court has today given its preliminary view that a woman who has a child by a surrogate mother is entitled to the benefit of EU pregnancy and maternity rights. However, leave already taken by the surrogate mother must be deducted from the intended mother's. 

Today, Thursday 26 September, the Advocate General issued a formal Opinion that an "intended mother" who takes the child into her care following birth has the right to receive maternity leave under EU law after the birth, provided the requirements of the national law are satisfied. 

Commenting on the ruling Hogan Lovells' employment partner Elizabeth Slattery said:

"This Opinion is significant as there are no uniform rules on surrogacy across the EU, not least because it is prohibited in some member states.

"Even though surrogacy is allowed in the UK under certain conditions, and parental rights can be acquired by "intended parents" through a "parental order", there are no specific rules on maternity or paternity leave for intended parents.

"The Opinion fits with the Government's proposals to give prospective parents in a surrogacy the right to statutory adoption leave and pay from 2015".

Background to the case

In CD v ST, the claimant and her partner had a child by a surrogate mother.  Although the claimant did not give birth, she did breastfeed from the time the child was born.  A few months after the birth the claimant and her partner were granted a parental order.

The claimant unsuccessfully applied for paid time off from her NHS employer.  When she brought pregnancy/maternity discrimination claims the tribunal referred it to the European Court to decide whether EU maternity and discrimination law covers an intended mother.

Scope of the ruling

On the length of maternity leave, the Opinion says that the EU minimum of 14 weeks' leave cannot be given to both mothers; leave already taken by the surrogate mother must be deducted from the intended mother's. 

However, the compulsory maternity leave (two weeks in the UK)  must be granted to both women in full. The division of the remaining ten weeks is for agreement between the mothers.

The Opinion makes it clear that this applies to pregnancy and maternity leave protection only - surrogacy is outside the scope of the general EU equal treatment laws. 

What next?

In the UK, the Government is proposing (as part of the shared parental leave proposals, scheduled for 2015) that prospective parents in a surrogacy arrangement who meet the criteria to apply for a parental order are to be eligible for statutory adoption leave and pay, and for flexible leave and pay (subject to the complex rules about qualification).  Both intended parents would be entitled to time off to attend two antenatal appointments with the surrogate mother. 

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