The European Court of Justice (CJEU) has ruled this week that mothers who bring up babies born through surrogacy agreements are not entitled to maternity leave.
The ruling said that 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 pregnant workers directive merely lays down certain minimum requirements in respect of protection for workers who had recently given birth.
However, although this is a setback for the two women who brought claims, one an NHS worker in the UK and one a teacher working in Ireland, it will not affect the UK Government’s promise of more generous terms in future, as the CJEU also said that members states were “free to apply more favourable rules for the benefit of commissioning mothers”.
Speaking of Ms D, who works in a hospital and was refused paid maternity and adoption leave, because she had never been pregnant nor adopted a child, the Court said that she had entered into a surrogacy agreement in accordance with UK law.
Then, some months after the birth, she was granted full and permanent parental responsibility for the child in accordance with UK legislation on surrogacy.
The case of Ms Z, the Irish teacher, was slightly different inasmuch as she and her husband had a child through a surrogate mother in California, although the child is genetically the couple’s. However, she too was denied paid maternity or adoption leave.
Despite the surprise ruling from Europe, the UK Government has already acknowledged the importance of time off from work for non-biological mothers to allow them to bond with their new baby and so, from next April, intended parents via surrogacy will be entitled to take paid leave.