The Court of Justice of the European Union has made a long awaited finding in relation to surrogacy arrangements and, in particular, the employment right for the ‘commissioning’ mother. This is the mother who is intended to receive and care for the baby, rather than the ‘birth’ mother who carries the baby and gives birth to it.

The Court grappled with the issues in two cases last week. First, CD v ST, a UK based case on a commissioning mother who immediately took over caring and breast feeding the baby hours after birth. The case was that the commissioning mother should have entitlement to maternity leave or adoption leave, and in the alternative the refusal to grant maternity leave or adoption leave was directly or indirectly discriminatory. She had been denied these entitlement due to the fact she had never been pregnant. Also she couldn’t apply for adoption leave as she was unable to provide a ‘matching certificate’.

The Directive stated that the purpose of maternity leave was primarily to protect a mother’s biological condition and the special relationship with her baby after pregnancy and childbirth. The Court made a very literal interpretation of this wording leading them to conclude that if a women had not given birth herself, then she didn’t benefit from the Directive. Even if the commissioning mother took over child care and breast feed the baby. The special relationship between mother and baby was not protected in circumstances without birth.

The Court also found that as a man who commissioned a surrogacy arrangement would be in the same position, thus there was no sex discrimination.

A further related case of Z v A, a Irish Case, also grappled with the issues around surrogacy. In this case the commissioning mother did not have a uterus and therefore in addition to the claims above, in CD v ST, claimed disability discrimination. The Court concluded that the women did not have a disability within the meaning of the Directive because it did not hinder her ‘full and effective participation in professional life’. This is a slightly different test to that adopted by UK law, but meant that there was no disability and could not be any discrimination.

For the time being therefore it seems that commissioning mothers will receive not protection from maternity or adoption legislation, however by implication the surrogate mother will qualify for maternity leave and pay. In particular any women who gives birth will have a compulsory two week leave. However this may not remain the same for long as the Children and Families Act 2014 give the Secretary of State the ability to make legislation to allow surrogate parents the same rights as adoptive parents. In effect the UK has an ability to go beyond the bare minimum given by EU law and give extra protection.

We would be interested in your thoughts? Do you think this is the right decision? How does this fit with the concept of adoption leave? Have you had to make these sorts of distinction in your staff?

More information can be found here