The European Court of Justice (ECJ) has decided that a 'commissioning' mother (a woman who has a baby through a surrogacy arrangement) is not entitled to maternity leave, even if she breastfeeds that baby.
Surrogacy is increasing in the UK. In 2007 37 parental orders were filed to register a baby born through surrogacy. In 2011 this figure increased to 131 and 2013 saw 167 orders. January 2014 alone saw 24 babies which may result in a record year for surrogacy in the UK. The legal position may therefore become increasingly relevant to International HR.
The ECJ considered two separate cases brought by an English and an Irish ‘commissioning’ mother. After their employers had refused to allow them to take maternity leave, they both claimed sex and pregnancy discrimination and the Irish woman also claimed disability discrimination (on the basis that she was disabled because she did not have a uterus).
In line with previous EU case law, maternity leave is provided for two reasons:
- to protect the mother's health after the vulnerable situation arising from her pregnancy; and
- to ensure the protection of the special relationship between ‘a woman and her child’.
The ECJ decided that the women did not have the right to maternity leave under the European ‘Pregnant Worker’s Directive (PWD). This is despite the fact the British employee managed to breastfeed the baby within one hour of its birth and under EC law breast-feeders are entitled to maternity leave. The ECJ held that the ‘protection of the special relationship’ and the entitlement for breast-feeders to take maternity leave 'presupposes that the worker....has been pregnant and has given birth to a child'.
The ECJ also held that failure to provide commissioning mothers with maternity leave was not sex discrimination because a commissioning father who had a baby through a surrogacy arrangement would be treated in the same way as a commissioning mother. They further held that it was not disability discrimination for the Irish employee not to receive maternity leave because her medical condition did not prevent her from participating in or advancing her employment.
This is a sad decision for commissioning mothers but a logical analysis of the law. The ECJ pointed out that member states may provide additional protection for its workers beyond the European directives if they so wish.
The UK is likely to implement laws in 2015 permitting commissioning parents to take adoption leave and statutory adoption pay in certain circumstances. In addition, the UK's definition of disability is not restricted to impact on employment but instead considers the impact of such disability on the employee's 'day to day' activities. Therefore it is possible that some commissioning parents may still be able to claim disability discrimination in the UK courts.
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