Advocate-General splits maternity leave between commissioning & surrogate mothers
A woman who has a child with a surrogate mother is entitled to maternity leave, according to a preliminary ruling by the Court of Justice of the European Union.
The woman (Ms CD) did not provide ovum but her partner provided the sperm. By law, the woman who gave birth was regarded as the mother. However, they were granted a parental order under the Human Fertilisation and Embryology Act 2008 nearly four months later. While maternity leave and adoption leave are paid, women who have children through a surrogate are entitled only to unpaid leave in certain conditions, under national law.
The woman’s employer, an NHS Foundation hospital, initially refused her request for time off “for surrogacy”, but later reconsidered and granted paid adoption leave. However, the woman claimed unfair dismissal and the case was referred to the Court of Justice to determine whether in accordance with EU law a woman has the right to receive paid maternity leave when a surrogate mother has given birth to a child. Delivering her opinion in the case, Attorney-General Kokott said both mothers should be given at least two weeks’ leave, but there should be no “doubling” of leave. She ruled out the possibility of unfavourable treatment of the intended mother relating to pregnancy because she was not pregnant, and found no evidence of direct or indirect discrimination. Therefore, the remaining 10 weeks of leave should be divided between them.
Rita D’Alton-Harrison, a qualified solicitor and senior lecturer at the University of Hertfordshire, says that, although preliminary rulings do not bind national courts, it is likely that the employment tribunal which referred the case would find in Ms CD’s favour.
“This is an important step towards the recognition of legal motherhood for commissioning mothers, and it is hoped that it will herald the much delayed separate legislation on surrogacy, which was called for by the Brazier Committee as far back as 1998 and the House of Commons Science and Technology Committee in 2005,” she adds.
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