Surrogacy: can both mothers take maternity leave?

There are no uniform rules on surrogacy across the EU, not least because it is prohibited in some member states. It is allowed in the UK and parental rights can be acquired by ‘intended parents’ through a ‘parental order’ but there are no specific rules on maternity or paternity leave for intended parents.

In CD v ST, the claimant and her partner had a child by a surrogate mother. Although the claimant was not pregnant and did not give birth, she did breastfeed from the time the child was born. A few months after the birth, the claimant and her partner were granted a parental order.

The claimant unsuccessfully applied for paid time off from her NHS employer. When she brought pregnancy/maternity discrimination claims, the tribunal referred it to the European Court to decide whether EU maternity and discrimination law covers an intended mother…

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