Surrogacy and maternity leave

A recent European Court of Justice ruling has made it clear that European Union law does not establish an automatic right for mothers who bring up newborn babies through surrogacy agreements to take maternity leave, even if there is a biological link.

A recent European Court of Justice ruling has made it clear that European Union law does not establish an automatic right for mothers who bring up newborn babies through surrogacy agreements to take maternity leave, even if there is a biological link.

The EU Directive says it is a protection only for the actual birth mother to take maternity leave and does not concede a supplementary right for mothers to take maternity leave. It allows the birth mother to take maternity leave to rest and recuperate before she returns to work, even if the birth mother relinquishes all her rights to the child.

The intended parent of the newborn child gas no right to maternity leave as she is not the actual birth mother. Clearly this creates financial issues for the intended parents who will have to take unpaid leave and potentially risk losing their jobs.

This is even the case where the child is biologically connected to the parents and not biologically connected to the birth mother/surrogate mother. This was demonstrated by Ms Z, a schoolteacher in Ireland, who was fertile, but could not support a pregnancy. The child born was biologically connected to Ms Z as it was her egg that was fertilised. However, because she had not given birth to the child, she could not be granted a right to maternity leave.

The Court argued the EU’s Pregnant Workers Directive was designed to help workers who had recently given birth, but duly emphasised that member states were “free to apply more favourable rules for the benefit of commissioning mothers”. This, essentially, passes the decision on to each country to determine the extent it wishes to offer maternity rights to non-birth mothers. My concern is that the decision could be a financial one: two maternity payments for one baby.

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As we know, the intended parent is restricted in how much ‘reasonable expenses’ are paid to the surrogate so any payment towards employment leave, if they were able to legally transfer maternity, would likely fall foul of this rule even if the EU permitted a shared arrangement.

The Moore Blatch law firm has condemned the Court of Justice of the European Union (ECJ) ruling.The ECJ said: "EU law does not require a right to a mother who has had a baby through a surrogacy agreement entitlement to maternity leave or its equivalent. The Pregnant Workers Directive merely lays down certain minimum requirements in respect of protection."

Under the Children & Families Act 2014, from next year, though, British mothers who raise children delivered through surrogacy arrangements will be given the right to paid leave. It will also extend to same sex couples, for example, where two men are raising a child and one seeks paternity to attend to the child’s early needs. This new legislation should bridge the gap and the law will finally catch up to the evolving alternative family and parenting structures now in place in the UK.

*Karen Holden runs a successful law firm in London that she set up herself. Karen specialises in commercial law such as start-up businesses, technology agreements, employment law and litigation. She has worked on  a number of high net worth, complex commercial and litigation matters. She supervises cross border debt recovery matters and claims; commercial and property disputes and a number of dismissal, discrimination and harassment cases involving sexual orientation, HIV disability and gender. Karen is also experienced in franchise agreements  investment deals and contracts and what was formerly known as compromise agreements. Karen also has a wealth of experience addressing LGBT matters.





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