ECJ Rules on Surrogacy and Entitlement to Maternity Leave

Mothers who receive a child under a surrogacy arrangement are not entitled to maternity leave under EU law. 

In C-D v S-T, C-D became a mother under a surrogacy agreement. She began mothering and breastfeeding the baby within an hour of the birth and continued breastfeeding for three months. Her employer refused to grant her maternity or adoption leave as she had not given birth and could not provide a “matching certificate” for adoption leave purposes. In Z v A, a woman who became a mother under a surrogacy arrangement asked to take paid leave but her employer only offered her unpaid leave.

Following conflicting Advocate General’s opinions, the ECJ has now ruled that a mother who receives a child under a surrogacy arrangement is not entitled to maternity leave. The purpose of maternity leave under the Pregnant Workers’ Directive is to protect the health of the mother in the especially vulnerable situation arising from her pregnancy. Although maternity leave is also intended to protect the special relationship between a mother and her child, it presupposes that the woman has been pregnant and given birth to a child. The position is therefore the same, irrespective of whether the woman breastfeeds the child.

The ECJ also ruled that refusing maternity leave to a woman in such circumstances is not sex discrimination, as a father who receives a baby under a surrogacy arrangement is not entitled to leave either. The woman is not therefore treated less favourably. In addition, there was no question of discrimination in relation to pregnancy or the taking of maternity leave as the woman was not pregnant and was not entitled to take maternity leave.

The ECJ’s decisions in these cases confirm that UK law does not have to provide paid leave to mothers who receive a baby under surrogacy arrangements and that the employers in these cases had not acted unlawfully in refusing paid leave. 

This is a perhaps a surprising decision as the ECJ has a bit of a track record of seeking to extend protection for parents. It does seem unfair that a mother who receives a baby under a surrogacy arrangement should not have the same opportunity to bond with her baby as an adoptive or birth parent. The Government has recognised that this is an issue and may be planning to provide leave to parents in England and Wales in such a situation. The Children and Families Act 2014 allows the Secretary of State to provide for employees to be entitled to statutory adoption leave where they have applied for or intend to apply for a parental order under s54 Human Fertilisation and Embryology Act 2008. A parent of a child born to a surrogate can apply for a parental order in respect of a child born to a surrogate if the gametes of at least one of the applicants were used to create the embryo.