Addleshaw Goddard

UK 200 2013 position: 23

ECJ confirms that commissioning mothers under surrogacy arrangements are not entitled to maternity leave

The European Court of Justice (ECJ) has held that a woman who becomes a mother by way of a surrogacy arrangement (a commissioning mother) does not have the right to maternity leave under the Pregnant Workers Directive. It also held that where an employer denies a commissioning mother maternity leave, this does not amount to sex discrimination on the basis that a commissioning father would be treated in the same way. Further, such a denial does not amount to discrimination on the grounds of pregnancy or maternity leave (CD v ST and Z v A Government Department and the Board of Management of a Community School).

The claimant worked for an NHS trust in the UK and became a mother by way of a surrogacy arrangement. The child was her husband’s biological child. The claimant’s employer refused the claimant’s request for paid maternity or adoption leave on the basis that she did not fulfil the eligibility requirements. Although the employer was willing to grant leave on a discretionary basis, this would be unpaid. The claimant went on to bring employment tribunal (ET) claims alleging that she had been discriminated against on the grounds of sex and/or maternity leave. The ET made a reference to the ECJ as to whether a commissioning mother should be entitled to paid maternity leave in order to develop a bond with her child and establish breastfeeding…

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