Are the intended mothers of surrogate babies entitled to maternity leave?

Posted on
Two separate cases involving the rights of the intended mothers of surrogate babies (one from the UK and one from Ireland) have been referred to the European Court of Justice (ECJ), resulting in preliminary opinions by two different 'Advocates-General' coming to different conclusions.

The cases involved claims by two intended mothers of surrogate babies who claimed they should be entitled to maternity leave when the babies were born. In the UK, such employees may be entitled to adoption leave if they are matched with the child for adoption, but if they are not, then they may have no right to any leave (except potentially unpaid parental leave if eligible) or pay as they would not qualify for maternity leave and pay.

One of the women claimed that even though her employer eventually allowed her to take adoption leave, failure to allow her to take maternity leave amounted to discrimination on grounds of sex and pregnancy. Paid statutory maternity leave in the UK is currently slightly more generous than paid adoption leave (though this is due to be changed through the Children and Families Bill) and employers sometimes offer more favourable contractual provisions for maternity than adoption. Under EU law there is no entitlement to paid adoption leave.

In one case, the Advocate-General was of the view that, if the country in question recognised surrogacy, then the intended mother should be entitled to paid maternity leave from the point at which she takes over care of the baby from the biological mother. This would involve both the biological mother and the surrogate taking two weeks' compulsory maternity leave, and sharing the remaining leave thereafter.

In the other case, a different Advocate-General was of the view that the EU Directive on pregnant workers was aimed only at protecting women who give birth, to enable recovery from the physical and mental strains of pregnancy and the aftermath of childbirth. To allow otherwise would produce inconsistency because adoptive mothers are not protected under this Directive. In addition, in his view the EU Directive on Equal Treatment did not protect the intended mother either, who was not in the same position as a woman undergoing IVF treatment. The question was whether the woman had been treated differently than the male parent of a child born through surrogacy.

In the ECJ, opinions given by Advocates-General are not binding but are usually followed. With two contradictory opinions, employers are no further forward in knowing what the final judgment will be, which is due to be published early next year. The Government has proposed that from 2015 the intended parents of a baby born through a surrogacy arrangement would be eligible for adoption leave and the new proposed 'flexible parental leave' when it is introduced – but not maternity leave.

Depending on the outcome of the ECJ's final judgment, public sector employees may be able to rely directly on EU law as interpreted by the ECJ before the UK's law is changed. It may also affect whether the changes proposed for 2015 go far enough to implement EU law, if the ECJ rules that intended mothers should be entitled to maternity leave.