The Government is considering whether to allow employees who are mother to a child born by surrogacy arrangements to be able to take maternity leave and pay. Currently, the law does not provide for any maternity leave or pay unless the employee is the baby’s birth mother.
Mothers of adopted children are able to take adoption leave, but that option is not always used where a baby is born in a surrogacy arrangement. A number of events have questioned the current legal position. Firstly, there was a case heard in the Employment Tribunals concerning a woman who had had a baby by surrogacy (C-D v S-T). The employee (who was allowed to remain anonymous) had been refused leave under her employer’s adoption leave policy, but instead was offered support by means of a career break, annual leave, reduced hours and unpaid leave.
The employee was not happy with this and brought claims of detriment in respect of her maternity leave request, discrimination against sex and maternity/pregnancy and also associative discrimination because of the pregnancy of the woman who gave birth to her baby. The Employment Tribunal thought it was appropriate to refer the question to the European Court of Justice (ECJ) about whether she was entitled to maternity leave and benefits – we await the judgment from the ECJ.
Alongside this, a decision is awaited from the ECJ in Kulikaoskas v Macduff Shellfish on the related question of whether the Equal Treatment Directive requires an employee to be protected against associative discrimination because of his partner’s pregnancy.
In the meantime, a Private Member’s bill was introduced on 17 April 2012 (Surrogate Parents (Leave, Pay and Allowance Arrangements) Bill 2010-12). The Bill seeks to introduce leave, pay and allowance arrangements for parents of children born to surrogate mothers equal to those available to non-surrogate parents. Approximately 70 babies are born to surrogates in the UK each year, although the use of surrogates is on the increase.
Finally, Norman Lamb confirmed in parliamentary questions in early July that the Department of Business, Innovation and Skills are looking into this area. It is anticipated that the law may change in the near future. We will of course keep you updated on developments.
Are you an employer or employee dealing with a surrogacy issue? We can help. Please call us on 01243 836840 for a no obligation chat or email us at [email protected].