European Court of Justice – should mothers through surrogacy have a right to maternity leave?

September 30, 2013
The European Court of Justice has given conflicting opinions in two cases concerning whether European mothers through surrogacy should be entitled to maternity leave.

In the first case, the Advocate General (adviser to the court) said that a UK mother should be given maternity leave and that she should share her entitlement with her surrogate mother.  The intended mother was employed at an NHS hospital and had a baby through surrogacy who she cared for – and breastfed – from birth, before she was granted a parental order by the UK family court giving her legal responsibility as a parent.  The ECJ preliminary opinion was that she had been discriminated against under EU law by being denied maternity leave rights.

In the second case, from Ireland, a different Advocate General expressed a different view.  In this case, a mother who worked as a teacher with a child born through surrogacy in California was not discriminated against by having been denied the right to maternity leave.  The adviser to the court said that whether Ireland should extend the scope of maternity leave to cover mothers through surrogacy was a matter for the Irish Parliament.

The differences are on the face of it puzzling given the factual similarities between the cases, particularly with the opinions given virtually simultaneously.  However, each case was argued under different parts of European anti-discrimination law, and there was a key difference in that Ireland does not allow for surrogacy, whereas UK law does.

As far as UK parents are concerned, the UK government has in any event recently announced its decision to extend maternity rights to parents through surrogacy, and is in the process of changing UK law through the Children and Families Bill.  It is something we have been campaigning for for more than five years, and we are proud to have contributed to the new legislation (more information about this here).  The new law is currently completing its passage through the House of Lords and is expected to come into force in 2015.  UK law will then apply equal rights for parents through surrogacy, with both straight and gay couples permitted to claim paid time off work to take care of their newborn children.

In the meantime, and until the new UK legislation come into force in 2015, the ECJ opinion will give further support to any parents denied leave who wish to bring discrimination claims against their employers.

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