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No maternity leave for women using surrogates, EU court rules

24 March 2014
Appeared in BioNews 747

Women using surrogacy to become mothers are not entitled to maternity or adoption leave under European Union (EU) law, the European Court of Justice (ECJ) has ruled.

The judgments were given in response to referrals made by a UK and an Ireland employment tribunal concerning claims brought by two women, Ms D from the UK and Ms Z from Ireland (reported in BioNews 734). Both women used surrogacy to become mothers and have since been granted parental responsibility over their children. Ms Z is also the genetic mother of the child. However, both women have been refused paid maternity or adoption leave by their employers on grounds that they had not been pregnant and the children had not been adopted.

The ECJ said that the Pregnant Workers Directive, the current European law that governs maternity leave, only covers pregnant workers, workers who have recently given birth and workers who are breastfeeding. The court also found that the directive was intended to protect the health and safety of a female worker before and after her pregnancy, rather than giving women paid leave to bond with or take care of the newborn. Since mothers using surrogacy have neither been pregnant nor have given birth themselves, they do not fall within the scope of the directive, even if they are breastfeeding the child.

The ECJ also interpreted two other EU directives that prohibit discrimination at work on grounds of sex and disabilities. The court found that an employer's refusal to grant such leave to a commissioning mother does not constitute discrimination on either ground. There would be no discrimination on grounds of sex, as the father of the child also does not benefit from maternity leave under the directive. A woman's inability to bear a child on her own also does not hinder her 'full and effective participation in professional life', and therefore is not a 'disability'.

However, the ECJ added that the EU law only sets a minimum level of protection that member states have to follow, leaving them free to apply more favourable rules to benefit women using surrogacy.

Commenting on the case, Vanessa Hogan of law firm Hogan Lovells 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'.

Marian Bloodworth of Berwin Leighton Paisner also noted: 'The ECJ's narrow interpretation that only birth mothers get maternity leave goes counter to the prevailing trend in the UK, which is to recognise the importance of intended mothers, whether through surrogacy or adoption, to have time off from work in order to allow them to bond with their new baby or child'.

In the UK, this legal loophole has been closed by the proposed Children and Families Bill. British mothers who raise children delivered through surrogacy arrangements will be given the same right to maternity leave as other mothers who have given birth (reported in BioNews 683).

13 July 2015 - by Antony Starza-Allen 
The mother of a child born through surrogacy has lost her challenge against a decision to reject her application for paid maternity leave at the Irish High Court...
26 January 2015 - by Merry Varney 
The UK Government has finally changed the law to allow parents of children born through surrogacy the same rights to leave and pay as other parents. However, rather than bring the new law into effect immediately, the Government has only applied it to babies 'whose expected week of birth begins on or after 5th April 2015'. This presents some problems...
16 June 2014 - by Natalie Gamble 
Many future parents of children born via surrogacy risk never being able to enjoy the new rights to leave and pay promised in the Children and Families Act...
31 March 2014 - by Antony Starza-Allen 
Parents of children born through surrogacy arrangements will be entitled to paid leave, after new legislation is passed by the UK's Parliament...
10 March 2014 - by Patricia Cassidy 
A 'do it yourself' surrogacy agreement resulted in legal chaos after the intended parents' relationship broke down within a few months of the baby's birth, leaving the intended mother with no parental rights over the child...
9 December 2013 - by Antony Starza-Allen 
A woman in Ireland whose child was born through surrogacy is challenging the Government's refusal to pay her maternity leave, alleging that it amounts to unlawful discrimination, reports the Irish Times...
30 September 2013 - by Dr Louisa Petchey 
Uncertainty in EU law over the issue of surrogacy and the right to paid maternity leave deepened this week after expert advisors to the Court of Justice of the European Union (CJEU) gave opposing recommendations on separate but similar cases....
26 November 2012 - by Sarah Pritchard 
The right to maternity leave in the UK will be extended to parents of children born through surrogacy, under proposed changes to rules on parental leave recently announced by the Government....
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