Maternity leave for mothers who have a baby through a surrogacy arrangement

Maternity leave for mothers who have a baby through a surrogacy arrangement

The European Court of Justice (ECJ) has recently considered the cases of a British NHS worker and an Irish teacher who both brought claims on the basis that as they had a child using a surrogate mother they were not entitled to maternity leave.

In a surprise decision the ECJ held that mothers who brought up children under surrogacy agreements were not entitled to maternity leave as the EU’s Pregnant Workers Directive was only designed to help workers who had recently given birth. However the court noted that member states remain free to apply more favourable rules for the benefit of commissioning mothers.

Under the Children & Families Act from next year British mothers who raise children delivered through surrogacy arrangements will be given the right to paid leave.

The reason for this decision is that EU law does not require that a mother who has had a baby through a surrogacy agreement should be entitled to maternity leave or its equivalent. The Pregnant Workers Directive merely lays down certain minimum requirements in respect of protection.

In the cases of Ms D who worked in a hospital in the UK and Ms Z an Irish teacher both women were considered legally to be the parents of their respective children. Both women were refused paid maternity or adoption leave on the grounds that they had never been pregnant and the children had not been adopted.

The court sympathised with the view that a woman’s inability to bear her own child may be a source of great suffering for her the ECJ said that did not amount to a"disability" within the meaning of the EU’s employment equality framework directive.

This narrow interpretation from the ECJ 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.

The UK government has already acknowledged the importance of this and from April 2015 intended parents via surrogacy agreements will be entitled to take paid leave under the Children and Families Act. This is further evidence that UK employment law provides greater rights to employees than many other EU countries.

After the introduction of these provisions and considering other recent changes in employment law which will allow parents to share maternity or adoption leave it will be possible for either or both intended parents to take leave around the time of a child’s birth.

If you have been discriminated against at work on the grounds of your pregnancy maternity leave or for any other reason or you are being bullied at work and you are looking for specialist employment law advice in Leeds please contact the dedicated employment department at Michael Lewin Solicitors and we will be happy to discuss your situation with you.

Anthony Fox

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