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…

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