An opinion published last week by the European Court of Justice (ECJ) could pave the way for both a surrogate mother and the intended mother to be given maternity leave and pay.
The opinion, written by the Advocate General, Juliane Kokott, relates to a referral to the court by the Employment Tribunal in Newcastle-upon-Tyne in the case of CD v ST.
Current employment law states that women who adopt a child in the UK are entitled to the same statutory maternity leave as birth parents, but families who choose to use a surrogate mother to carry their baby are not covered by the legislation.
In this case CD had a baby through a surrogate mother using sperm from her partner. She immediately took over care of the baby and began breastfeeding within an hour of the birth.
However, when she discovered that her employers were not obliged to give her paid maternity leave, she took them to court, which asked the ECJ to decide whether she was entitled to maternity rights under EU law.
The Advocate General, wrote that as surrogacy is legal in Britain, people who choose to go down that path should be permitted the same rights as birth and adoptive parents and added that even if the mother does not breastfeed the child, she “has the right to receive maternity leave provided for under EU law after the birth of the child in any event where she takes the child into her care following birth”.
However, she warned that if the woman who gives birth to the child also takes maternity leave that must be deducted from the total leave taken by the mother who is assuming legal guardianship of the child. Under EU law, new mothers are entitled to 14 weeks’ paid leave.
Ms Kokott’s’s opinion will now be forwarded for approval by the court, and if it accepts the recommendation, amendments would have to be made to the UK’s equality act.