Commissioning surrogate mother not entitled to maternity leave

In two cases, CD v ST [C-167/12] and Z v A Government Department and the Board of Management of a Community School [C-363/12], the European Court of Justice (ECJ) considered that commissioning mothers who receive a child through a surrogacy arrangement were not entitled to maternity leave under the Pregnant Workers Directive and that it was not sex or disability discrimination under the Equal Treatment Directive to deny a commissioning mother paid maternity leave.

The ECJ stated that although the purpose of maternity leave is to protect the special relationship between a woman and her child, the Pregnant Workers Directive presupposes that the mother has been pregnant and given birth; therefore, a commissioning mother does not fall within the scope of the directive even if she breastfeeds the child…

Click on the link below to read the rest of the Kemp Little briefing.

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