There is no specific EU or UK legislation for workers who become parents via surrogacy arrangements, although this will be addressed in 2015 when the Government's proposals for shared parental leave are due to come into force.
In C-D v S-T-C, Advocate General Kokott has considered whether a woman who becomes a mother under a surrogacy arrangement is entitled to maternity leave and protection from discrimination under EU law.
C-D, an NHS employee, became a mother under a surrogacy arrangement and started breastfeeding the baby within an hour of the birth. She brought a claim in the Employment Tribunal after being denied paid maternity and adoption leave by the NHS. The Tribunal referred the case to the ECJ to decide whether EU maternity and discrimination law covers the intended mother in a surrogacy arrangement.
Advocate General Kokott issued an opinion stating that the intended mother in a surrogacy arrangement has the right to maternity leave under the Pregnant Workers Directive, regardless of whether or not she breastfeeds. However, although the intended mother must be able to take the two weeks compulsory leave period, the rest of the maternity leave entitlement arising from the child's birth must be shared with the surrogate mother in order to avoid a doubling of the overall maternity leave. This means that leave taken by the surrogate mother must be deducted from the intended mother's leave, and vice versa. The Advocate General also stated that although the intended mother has the right to maternity leave, the employer's denial of that right does not constitute sex or pregnancy discrimination under the Equal Treatment Directive.
At the same time, a different Advocate General gave a conflicting opinion in an Irish surrogacy case, Z v A Government Department and the Board of Management of a Community School. In his view, the Pregnant Workers Directive only applies to women who give birth, not to an intended mother in a surrogacy arrangement. However, he agreed that surrogacy falls outside the scope of EU equal treatment laws.
These questions are difficult to resolve in the context of EU legislation which was drafted with biological motherhood in mind. It remains to be seen whether these opinions will be followed when the ECJ issues its full decisions in these cases in due course. However, in any event, the rights of intended parents in a surrogate arrangement will be extended in the UK in 2015.
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