Are commissioning surrogate mother’s entitled to maternity leave?

Apr 07, 2014
In the recent case of CD v ST, the Court of Justice of the European Union considered whether a commissioning mother in a surrogacy arrangement was entitled to maternity leave and whether an employer's refusal to grant maternity leave could amount to unlawful discrimination.

In this case the Claimant, a commissioning surrogate mother, and her partner entered into a surrogacy agreement to have a baby. Shortly after the birth of the baby, the Claimant fully assumed the role of the baby's mother and obtained a parental order granting her and her partner parental responsibility for the child.

However, the Claimant’s employer refused to grant the Claimant paid maternity leave on the basis that she had not given birth to a child, and the Claimant sought to bring a claim for infringement of her right to maternity leave, discrimination on the grounds of sex and less favourable treatment for reasons related to pregnancy and maternity.

The case was taken to the Court of Justice of the European Union (CJEU), who took the view that whilst maternity leave is intended to protect ‘the special relationship between a mother and her child over the period which follows child birth’, it is also intended to protect the ‘biological condition of a woman during and after child birth’. It therefore concluded that a worker’s right to maternity leave operates only on the assumption that a worker has been pregnant and has given birth to a child. As this did not apply to the Claimant, the CJEU ruled that the Claimant was not entitled to maternity leave.

The Court went on to find that such refusal of maternity leave could not constitute discrimination on the grounds of sex as a commissioning father would be treated in the same way as a commissioning mother. As the Claimant had not been pregnant and did not have a right to maternity leave, she was not subjected to less favourable treatment on these grounds.

This ruling means that whilst it remains open to Employers to accommodate commissioning surrogate mothers under their individual maternity and parental leave policies, commissioning mothers in a surrogacy arrangement have no right to maternity leave. Employers will also not discriminate against such employees if they are refused maternity leave, even where they have breastfed their child and have acquired parental responsibility.

Darren Hayward

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Darren Hayward

Darren joined Nockolds in 2003 and is the firm’s Managing Partner and Partner in charge of our Employment Law Team. 
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