CJEU: a mother who has a child through a surrogacy arrangement is not entitled to maternity leave

The Court of Justice of the European Union (CJEU) had been asked whether employers in the UK and Ireland had acted in breach of the Pregnant Workers Directive when they refused to grant paid leave on the grounds that the women had never been pregnant and the children had not been adopted by their parents. Additional claims brought by the women under sex discrimination and disability discrimination laws also failed.

Employment law expert Linda Jones of Pinsent Masons, the law firm behind Out-Law.com, said that although the ruling "dealt a blow" to employees who become parents through surrogacy arrangements, the government in the UK was already taking action to amend the rules.

"In the UK, the government has already stated an intention to amend the rules applying to adoption leave to cover parents in a surrogacy arrangement who obtain a Parental Order in relation to the child," she said. "The changes will come into effect next year."

"However the judgment, which refers to the special status of women who have given birth, may also prove to be relevant in the ongoing debate about whether a failure to provide enhanced contractual pay for parents who take the new right to shared parental leave which comes into effect next spring will constitute sex discrimination in a situation where their employer provides enhanced maternity pay," she said.

Draft regulations governing a new system of shared parental leave and pay, due to be made available to the parents of babies due on or after 5 April 2015, were issued by the Government last week.

The CJEU said that the Pregnant Workers Directive set certain minimum requirements designed to protect pregnant workers, or those who had recently given birth or were breastfeeding, because those workers were a "specific risk group" for which "measures must be taken with regard to their safety and health". However, member states were free to establish more favourable rules if they chose to do so, it said.

Ms D, a UK hospital worker, and Ms Z, a teacher in Ireland, had both used surrogate mothers in order to have a child. In the UK case, the court granted Ms D and her partner full and permanent parental responsibility for the child in accordance with UK legislation on surrogacy a few months after the birth, with the surrogate mother's consent. In the Irish case, the surrogate mother was based in California. Under Californian law, as the child was biologically that of Ms Z and her husband, they were considered to be the baby's parents and there was no reference to the surrogate mother's identity on the child's US birth certificate.

The Pregnant Workers Directive requires that mothers be given a minimum of two weeks of maternity leave, which can be extended to 14 weeks; allocated "before and/or after confinement". The CJEU said that the express use of the term "confinement" in the legislation indicated that the purpose of that leave was "to protect the health of the mother of the child in the especially vulnerable situation arising from her pregnancy".

In its judgment, the CJEU referred to previous rulings in which it had held that maternity leave was "also intended to ensure that the special relationship between a woman and her child is protected". However, it was "clear from the wording of the judgments" that this only referred to "the period after pregnancy and childbirth", it said.

"It follows from the foregoing that the grant of maternity leave pursuant to [the directive] presupposes that the worker entitled to such leave has been pregnant and has given birth to a child ... Therefore, a commissioning mother who has used a surrogate mother in order to have a child does not fall within the scope of the directive, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby," the court said.

The CJEU then considered whether a refusal to grant maternity leave to a commissioning mother amounted to sex discrimination and, additionally in the case of Ms Z, disability discrimination. It said that in these cases, the refusal to grant paid leave was not "based on a reason that applies exclusively to workers of one sex" because "a commissioning father who has had a baby through a surrogacy arrangement is treated in the same way as a commissioning mother in a comparable situation, in that he is not entitled to paid leave equivalent to maternity leave either". In Ms Z's case, the fact that she was unable to carry a child did not amount to a disability because it did not "hinder" her "full and effective participation ... in professional life on an equal basis with other workers".