EU rules surrogate mothers are not entitled to maternity leave


The European Court of Justice has rejected claims for maternity benefits by mothers whose babies were born through surrogacy arrangements in two cases recently announced. These decisions arrive just weeks after the UK has agreed legislation that intends to put both intending surrogate and adoptive parents on the same footing as natural parents from next year.

Both cases involved mothers who had children through surrogacy arrangements and were claiming entitlement to maternity benefits. They took their cases to the European Court of Justice (ECJ) to claim they were eligible for the  benefits under the EU Pregnant Workers Directive, but in contrast to the rights for pregnant women, there is no uniform set of rules on surrogacy across the EU.

One of the cases was brought by a mother who took charge of the baby within an hour of birth and was able to breastfeed for several months.  Together with her partner, she had obtained a parental order under the Human Fertilisation and Embryology Act 2008, but none of this was enough to convince the ECJ to agree the same rights as a birth mother.

The second claim was brought by a woman in Ireland, where surrogacy is not regulated. The woman was medically unable to carry a pregnancy and therefore she and her partner found a surrogate in California, USA to carry their fertilised egg.  Despite the baby being their genetic child, and that under California law no other parental rights were available, again the ECJ ruled against the claim under the Pregnant Workers Directive.

However, in the UK, under the new Children and Families Act 2014, things will be changing. In particular, from April 2015, adoption leave and pay will reflect the entitlements available to birth parents.  There will be no qualifying period for leave; enhanced pay to 90% of salary for the first 6 weeks; and time off to attend introductory appointments.  Intended parents in surrogacy and ‘foster to adopt’ arrangements will also qualify for adoption leave and pay.

Julie Taylor, Employment Associate at Gardner Leader solicitors, commented: “The decisions of the European Court in these cases is surprising, but the rulings are unlikely have a huge impact for employers because there will be a very different position when the Children and Families Act comes into force in April next year.  Employers and intending adoptive and surrogacy parents, who are uncertain of their rights, should seek legal guidance on their position.”

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