This article was published on November 1st, 2013
In a recent case heard before the European Court of Justice, it was decided that the intended mother in a surrogacy arrangement is not entitled to paid maternity leave from her employer. This decision was largely based upon the fact that the intention of the Law was said to centre upon the desire to protect the biological mother of a child before and after childbirth. Whilst it was agreed that maternity leave assists in the development of the bond between mother and baby, this was again to be considered to be in the context of childbirth and breastfeeding.
The intended mother also sought to rely upon claims that she had been discriminated against on the grounds of sex and disability. Both these claims were rejected on the basis that firstly, a father of a child in a surrogacy arrangement would have been treated the same as the intended mother and secondly, the fact that the intended mother was unable to carry a child naturally did not constitute a disability within the meaning of relevant legislation.
This decision is in complete contrast to another decision handed by the same Court on the same day. In this case it was held that there was a right to maternity leave for intended mothers under the Directive and the leave was to be shared between both the surrogate mother and intended mother.
It is worth noting that recently the UK Government confirmed their intention to extend maternity rights to intended mothers in surrogacy arrangements. This change in the law is anticipated to be brought into force in 2015.
It will be interesting in the meantime, however, to see how these varying approaches are adopted by the UK Courts.