European court ruling: Receiving surrogate mother not entitled to maternity leave

24 March 2014

Does a commissioning mother in a surrogacy arrangement fall within the scope of the Pregnant Workers Directive, particularly where she has breastfed the child following birth?

No, according to the opinion of the Court of Justice of the European Union (CJEU).

Daniel Barnett’s Employment Law Bulletin summarises the Case C 167/12 CD v ST.

The Claimant, Ms D, and her partner had a child via a surrogate mother. The Claimant started mothering and breastfeeding the child within an hour of the birth. The couple were granted a parental order. The Claimant lodged a claim with the Employment Tribunal after being denied paid maternity and adoption leave by her employer on the grounds that she did not give birth to or adopt the child.

Following a preliminary reference by the Employment Judge, Advocate-General Kokott suggested the Court should find that a commissioning mother has the right to receive maternity leave under the Directive, even when she does not breastfeed the child.

However, the Court has held that although maternity leave is intended to protect the special relationship between a woman and her child, the grant of maternity leave pursuant to the Directive presupposes that a worker has actually been pregnant and given birth to a child.

The Court also found that an employer's refusal to provide maternity leave to a commissioning mother does not constitute discrimination on the grounds of sex contrary to the Equal Treatment Directive.

CIPP comment

The court did say that member states were free to apply more favourable rules for the benefit of commissioning mothers; not unlike UK maternity, paternity and adoption pay where the employer can also apply more favourable terms than the statutory entitlement.

The Children and Families Act 2014 was recently approved by Parliament and from 2015 intended parents in surrogacy arrangements in the UK will also qualify for adoption leave and pay.

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