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Surrogacy and maternity rights

Case C 167/12 CD v ST

It’s usually obvious who is entitled to maternity rights. But not so where surrogacy is concerned. Who has the right to maternity pay, maternity leave etc – the surrogate mother who gave birth, or the commissioning mother?

The Court of Justice of the European Union (CJEU) has looked at the case of Ms D, who commissioned a surrogate. Ms D breastfed the baby as soon as it was born, and she and her partner were granted a parental order. But after her employer denied her maternity and adoption leave (because she hadn’t given birth to or adopted the child) she brought a claim.

The CJEU held that maternity leave rights hinge on pregnancy and giving birth. That’s despite maternity leave being intended to protect the special relationship between a woman and her child.

So Ms D’s employers were not bound to grant her leave. But this is set to change next year when the Children and Families Act will give commissioning mothers like Ms D the right to paid leave.