Kate Brooks

Partner, Solicitor & Head of Employment/HR Services

DATE PUBLISHED: 09 Mar 2016 LAST UPDATED: 09 Jun 2021

No rights to maternity leave – surrogacy

On 18 March the European Court passed a judgment which confirms that the intended mother (person who cares after birth) in a surrogacy arrangement has no maternity rights.

Conflicting opinions were given by judges in September 2013 in relation to whether intended mothers should get maternity rights and whether refusing to give intended mothers maternity rights was discrimination.

One case concluded that the intended mother took the pace of the birth mother immediately after birth and should therefore be given maternity leave; the other concluded that the purpose of maternity leave was to help the birth mother recover from childbirth and therefore indented mothers would get no rights.

On 18 March the European Court published its judgment in 2 cases that had previously been conflicting. Even though it is not good news for intended mothers there is now clear guidance. Maternity leave does not extend to intended mothers in surrogacy situations; and failure to provide maternity or adoption leave to intended mothers does not constitute direct or indirect sex discrimination.

Important points to take from the judgments:

  1. Employers are not required to provide maternity leave to a female worker who is an intended mother under a surrogacy arrangement, even in circumstances when she breastfeeds the baby.
  2. The lack of parental leave in a surrogacy arrangement applies equally to men and women and therefore there is no direct discrimination based on sex.

Some employers have been treating employees in surrogacy arrangements in the same way as adoptive parents, however based on the case law there is no legal reason for this to continue.

Watch out for change in 2015 when the government may introduce parental leave rights for intended parents in surrogacy arrangements.

For further information on this topic or maternity rights or discrimination please contact me on 01202 636210 or kate.brooks@ellisjones.co.uk.

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