We previously wrote about surrogacy and maternity rights in an article in 2012, which can be found here.
As set out in our previous article, the law does not currently provide for any maternity leave or pay unless the employee is the baby’s birth mother. Two cases (CD v ST , and Z v a Government Department and the Board of Management of a Community School ) sought to challenge this and were referred to the Court of Justice for the European Union (CJEU) for a decision on whether EU maternity and discrimination law covers a woman intending to mother a baby under a surrogacy arrangement.
Initially, the two opinions of European court adovocate-generals both said that surrogacy is outside the scope of the general EU equal treatment laws. However, they produced opposing advice on pregnancy and maternity leave protection. In one case (the UK case of CD v ST) it was considered 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. In the other case (the Irish case of Z v a Government Department and the Board of Management of a Community School) the opposite view was taken, which was that the pregnant workers’ directive only protects women who give birth. It was then down to the CJEU to decide which opinion to follow.
The CJEU decided to follow the opinion in the Irish case, and decided that only mothers giving birth can take maternity leave. Additionally, the CJEU said that it is not sex discrimination to refuse the intended mother maternity leave where the intended father would have no such entitlement to leave, and also that the refusal to grant the equivalent of adoption leave is outside the scope of EU discrimination law – it is a matter for individual member states whether to grant such leave or not.
The decision is perhaps surprising given the on-going commitment of the European Union to encourage more family friendly rights. However, the UK is ahead of the game and is planning on introducing better rights for those involved in surrogacy arrangements. This is part of the shared parental leave regime. This means that prospective parents in a surrogacy arrangement may be eligible for statutory adoption leave and pay and for shared parental leave and pay.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).