16 January 2014
Maternity leave and surrogacy
The purpose of EU Directive 92/85EC – the Pregnant Workers Directive – is ‘to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding’.
In the UK, surrogacy is permitted subject to certain provisions but, as yet, there are no specific rules governing the maternity leave entitlement of the intended mother. There have been two recent cases on this subject, both of which were referred to the European Court of Justice (ECJ) for clarification on the rights of the intended mother in such cases.
In CD v ST, an employee of the NHS claimed that she was entitled to maternity leave under the Directive so that she could care for and breastfeed a baby born as a result of a surrogacy arrangement.
The Advocate General (AG) considered that the special relationship between a woman and her child over the period which follows pregnancy and childbirth warrants protection in the case of an intended mother in the same way as it does in the case of a biological mother. In her view, a woman who has a baby through a surrogacy arrangement does have the right to maternity leave when she takes the child into her care, where surrogacy is permitted in the Member State concerned and its national requirements are satisfied, even where the intended mother does not breastfeed the child following birth.
It was her view that, in such cases, both women were entitled to at least the two weeks’ minimum compulsory leave period. Aside from that, a surrogacy arrangement cannot result in a doubling of the maternity leave entitlement arising from a child’s birth and so any division of the entitlement between the two women must take account of the protection afforded under the Directive to the surrogate mother and the child’s best interests.
In Z v A, which was referred to the ECJ by the Irish Tribunal, a different AG handed down a conflicting view, finding that the purpose of maternity leave under the Directive is to protect the health and safety of the woman who has given birth and it was not, therefore, available to the intended mother in a surrogacy arrangement.
In both cases, however, the opinion of the AG was that where the employer of the intended mother denies her the right to maternity leave, the refusal does not amount to discrimination on the grounds of sex or pregnancy under EU Directive 2006/54/EC – the Equal Treatment Directive.
An AG’s opinion, although often followed, is not binding on the ECJ. Until the correct approach for an employer to take in such circumstances is made clear, caution is needed.
Under the Children and Families Bill 2013, prospective parents in the fostering-to-adopt system and parents in a surrogacy arrangement who are eligible and intend to apply for a parental order will be entitled to leave and pay on the same basis as adoptive parents. The new rules are expected to come into force in 2015.