Workplace law is out of step

European courts are divided over the rights of parents of surrogate babies to take paid leave

Parental responsibility for a surrogate child can be transferred to another person either by a parental order or an adoption order. Adoptive parents may qualify for statutory adoption leave and paternity leave respectively.


However, the legal position regarding those who go down the parental order route in a surrogacy situation is less clear. Therefore, when an employee who worked for an NHS foundation became a mother under a surrogacy agreement and her employer refused to grant her maternity or adoption leave, she sued for sex and pregnancy/maternity-related discrimination under the Equality Act 2010. In CD v ST the Employment Tribunal made a reference to the European courts to determine whether, under EU law, a woman who becomes a mother by way of surrogacy should be entitled to paid maternity leave.

On 23 September the advocate general in question ruled in the employee’s favour. It held that an intended mother has the right to maternity leave under the Pregnant Workers Directive (PWD) so that she can bond with the child, integrate it into the family and adjust to her role as a mother. However, such leave would need to be shared between the intended and surrogate mothers after the two-week compulsory maternity leave period taken by the surrogate mother, and should apply regardless of whether the intended parent is breastfeeding the child. On the same day, another advocate general, in Z v A Government Department and the Board of Management of a Community School, ruled the opposite way. It was held that the aim of the PWD is to protect a woman’s biological condition in the period before and after she gives birth.

As alternative family structures evolve, UK employment laws are one step behind as they do not reflect the needs of working parents and modern families. The Government has recognised this missing link by introducing the Children and Families Bill. When parts of the bill become law in 2015 they will allow statutory maternity leave and pay to be shared between different types of parents. Adopters and eligible parents in a surrogacy situation will be able to take family-related absence like other employees. The bill will also allow prospective parents, including those in a surrogacy situation, to take unpaid time off work to attend up to two antenatal appointments.

Currently, intended parents in a surrogacy arrangement do not have the right to take leave for family reasons. If an employer were to grant maternity leave and pay to an employee, this would fall outside the existing framework governing maternity leave rights. It is also unclear if the employee’s spouse or partner, employed by another organisation, would qualify for paternity leave, and whether that employer could be liable for associative discrimination on pregnancy and maternity grounds if it were to deny such a request. 

Hopefully, the legal position will be clarified once the European courts have resolved the conflicting advocate generals’ opinions.