In C-D v S-T-C-167/12, Advocate General Kokott considered whether a woman who becomes a mother under a surrogacy arrangement is entitled to maternity leave under EU Law.
C-D, who worked for an NHS foundation, became a mother under a surrogacy arrangement. The Claimant started mothering and breastfeeding the child within an hour of the birth. The Claimant lodged a claim with the employment tribunal after being denied paid maternity leave by her employer on the grounds that she did not give birth to or adopt the child.
The Employment Tribunal made a preliminary reference to the ECJ. Advocate General Kokott’s has suggested that the ECJ should find that an intended mother who receives a baby via a surrogacy arrangement has the right to maternity leave under the Pregnant Workers Directive. This is so regardless of whether she intends to breastfeed the child. Her maternity leave cannot be less than the compulsory leave period of two weeks but, aside from that two week period, a surrogacy arrangement cannot result in a doubling of the maternity leave entitlement arising from a child’s birth. Therefore, the leave taken by the surrogate mother must be deducted from that of the intended mother, and vice versa.
This is an Advocate General’s opinion and therefore doesn’t amount to a binding statement of law. We will have to wait and see the ECJ’s decision in due course.
On the same day, Advocate General Wahl gave his opinion in another surrogacy case, Z v A Government Department and the Board of Management of a Community School C-363/12. He suggested that the health and safety protection provided by the Pregnant Workers Directive is intended only for women who give birth to a child, and should not be read as providing maternity leave to a mother who has her genetic child via a surrogacy arrangement.
The ECJ will have to resolve this issue in due course.
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Helen Phillips, Solicitor, Just Employment Solicitors.