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Is Maternity Leave Available For Surrogacy?

Friday, 9 January 2015

A woman was recently denied maternity leave by the European Court of Justice (ECJ) on the basis that she had her baby using a surrogate mother. The claimant was employed by the NHS Foundation Trust, whom she believed discriminated against her. Her claim was based on the grounds of sex and maternity discrimination under the Equality Act 2010. However the employment tribunal in Newcastle, England, held that the right to maternity was held only by the natural birth mother.

The ECJ then reaffirmed the stance. It held that Member States do not have to provide maternity leave if the woman has not actually given birth, and that doing so ‘does not constitute discrimination on the grounds of sex’. The woman had been entitled to pay leave but was deemed to have ‘no legal right to paid time off for surrogacy’.

The Children and Families Act 2014: preparing for the future

The ECJ outlined that the EU directive of pregnant workers (Directive 92 / 85 EEC), on which its decision was based, was specifically designed to workers who had physically given birth, and ‘merely lays down certain minimum requirements in respect of protection.’ It acknowledged that Member States could, if they so choose, apply more favourable rules for commissioning mothers, yet they were simply not obligated to do so, even in situations whereby a woman breastfeeds the child.

The British Government has chosen to act upon this, evidenced by the new Children and Families Act which is due to come into force in April 2015. It holds that women who have babies by way of a surrogate are entitled to the rights of maternity (Part 7: Statutory Rights to Leave and Pay).

Many have welcomed the move which is pertinent given the increasing popularity of surrogacy arrangements that has been encouraged by improvements in technology. Families that have had children this way will see their legal rights regarding pay and leave brought into line with those available to other families.


It is not known whether the claimant in this case will appeal the decision by the ECJ once the Children and Families Act comes into force as this will at place surrogate mothers in a much stronger position than before. The new law is unlikely to be welcomed by employers but it is difficult to contemplate any challenging it despite this case having set an EU wide precedent.

For specialist family law advice contact Jeetesh Patel via e- mail or by telephone on 0207 611 4848.

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