Women who have children by surrogate mothers may be entitled to maternity leave under European law

The European Court has given its preliminary view that a woman who has a child by a surrogate mother is entitled to the benefit of EU pregnancy and maternity rights. However, leave already taken by the surrogate mother must be deducted from the intended mother’s.

On 26 September, the advocate general issued a formal opinion that an ‘intended mother’ who takes the child into her care following birth has the right to receive maternity leave under EU law after the birth, provided the requirements of the national law are satisfied.

Commenting on the ruling, Hogan Lovells’ employment partner Elizabeth Slattery said: ‘This opinion is significant as there are no uniform rules on surrogacy across the EU, not least because it is prohibited in some member states…’

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