Maternity Leave and Surrogacy

September 17, 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.

A recent case on this topic (CD v ST), in which 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, was referred to the Court of Justice of the European Union (CJEU) for clarification on the rights of the intended mother in such cases.

The CJEU declined to follow the opinion put forward by the Advocate General and ruled that the objective of the Directive as regards protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth only applies to a child's biological mother, not to the intended mother of a child born as a result of a surrogacy arrangement.

Furthermore, where the employer of the intended mother under a surrogacy arrangement 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.

The Children and Families Act 2014 gives the Secretary of State the power to introduce regulations giving 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, entitlement to leave and pay on the same basis as adoptive parents. The new rights are expected to be introduced in 2015.