ECJ Rules On Maternity Leave For Surrogate Mothers

Court Says EU Law Does Not Provide Paid Leave For Surrogate Mothers


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The European Court of Justice (ECJ) has ruled that mothers who bring babies up through surrogacy are not entitled to maternity leave or pay.

The court handed down its decision earlier this week in relation to two surrogate mothers who had applied for paid leave equivalent to maternity leave or adoption leave.

At the time the applications were refused on the grounds that they had never been pregnant and the children had not been adopted by the parents.

The court has upheld this decision and said the EU's pregnant workers directive was designed only to help workers who had recently given birth.

The ECJ said: "EU law does not require that a mother who has had a baby through a surrogacy agreement should be entitled to maternity leave or its equivalent. The EU Pregnant Workers Directive merely lays down certain minimum requirements in respect of protection."

The Court went on to hold that the employer’s refusal to provide maternity leave was not direct sex discrimination either. Under UK law a commissioning father is treated in the same way as a commissioning mother, as he is also not entitled to paid leave equivalent to maternity leave. There was no indirect sex discrimination as there was nothing to establish that the refusal of such leave put female workers at a particular disadvantage compared with male workers.

It did add that member states were "free to apply more favourable rules for the benefit of commissioning mothers".

Expert Opinion
This ECJ decision will be disappointing news for commissioning parents in a surrogacy situation, as it gives them little or no employment rights in terms of leave or pay, particularly after the struggle that they might have endured to have a child. The commissioning parents would be left with agreeing unpaid leave or a sabbatical to initially bond with their child, of course if they can afford to do so.

“Alternatively they could use up holidays or take time off for dependents in an emergency situation. They may also consider making a flexible working request, which their employer would be obliged to consider.

“Employers will need to consider the impact on the employee’s moral and motivation if some arrangement of agreed leave in such a situation cannot be agreed with the employee.

“However the UK government, within the Children’s And Families Act from April 2015, is trying to address this loophole, with commissioning couples in a surrogacy situation being entitled to flexible parental leave from April next year”.
Ami Naru, Associate

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