Media Briefing Note: Women who Have Children by Surrogate Mothers Not Entitled to Maternity Leave Under European law

LONDON, 18 March 2014 - The European Court of Justice (ECJ) has today confirmed that a woman who has a child by a surrogate mother is not entitled to the benefit of EU pregnancy and maternity rights. This resolves a conflict between earlier Advocate General opinions on the point.

There is also no EU requirement to extend adoption leave rights to mothers having children via surrogacy arrangements.

Commenting on the ruling Vanessa Hogan, Of counsel in Hogan Lovells' employment team, said:

"Advances in medical technology in recent years have made surrogacy arrangements more common. These decisions show that laws that were drafted two decades ago do not cater for such advances.

The good news for families in this situation is that changes introduced by the Children and Families Act will make it easier in future for the intended parents in a surrogacy arrangement to access adoption leave and pay and shared parental leave and pay. It will therefore be possible for either or both intended parents to take leave around the time of a child's birth."

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 (although she was granted unpaid leave).  When she brought pregnancy/maternity discrimination claims the tribunal referred it to the ECJ to decide whether EU maternity and discrimination law covers an intended mother.

The ECJ has now decided that only workers who have been pregnant and have given birth are entitled to maternity leave under the Pregnant Workers Directive. Breast-feeding a baby is not sufficient in itself to entitle a woman to protection under that Directive.

Further, it is not direct sex discrimination to refuse the intended mother maternity leave in circumstances where the intended father would have no such entitlement. Another case decided today, Z v A Government Department, establishes that there is no entitlement to adoption leave as a matter of EU law; whether to grant adoption leave is a matter for individual member states.

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 shared parental leave and pay (subject to the complex rules about qualification).  Both intended parents will be entitled to time off to attend two antenatal appointments with the surrogate mother.  

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