Complete Clarity Solicitors


Does Surrogacy Entitle Mothers to Maternity Leave?

The Court of Justice of the European Union (CJEU) has recently ruled that European Law does not provide mothers with any maternity leave entitlement where a surrogate has carried and given birth to the child.

The ruling, cleared some of the confusion in this complex area of law, which was caused by two Advocates Generals giving conflicting Opinions on the matter.

The case concerned a mother, referred to as ‘CD’, who was denied both maternity and adoption leave by her employer, following the birth of her child through a surrogate.  Although CD was neither the birth mother nor the biological mother, CD and her partner were considered the legal parents of the child, and CD herself had began to breastfeed the baby within an hour of its birth.

After CD brought a claim against her employer, the Employment Tribunal referred the matter to the CJEU where it was held that because CD herself was not pregnant, she could not qualify for maternity leave under the Pregnant Workers Directive, nor was there any discrimination in the employer’s decision to refuse maternity leave.

Despite the CJEU’s rather harsh decision, the UK Government had previously introduced the Children and Families Act 2014 – meaning that surrogate parents will have the right to paid leave once the Act comes into force in April 2015.

Commenting on the 2014 Act’s employment provisions, which are aimed at modernising the traditional UK working environment, Employment Relations Minister, Jenny Willott said:

“Current workplace arrangements have not kept up with the times. The Children and Families Act will bring the way new parents balance their working and home lives into the 21st century.”

Ms Willot continued: “The new system is good for business as it will create a more motivated and flexible, talented workforce. Employers will be able to attract and retain women – from the boardroom to the shop floor – and prevent them from dropping out of the world of work once they start a family. Flexible working will also help widen the pool of talent in the labour market, helping to drive growth.”

While most of the 2014 Act applies to England only, the provisions that relate to paid leave also extend to Scotland.

Until April 2015, when the provisions come into effect, employers may chose to include surrogacy arrangements in their own policies should they wish, although they are under no legal obligation to do so.

Need an Employment Law Solicitor in Glasgow or Aberdeen?

Complete Clarity Solicitors have an enthusiastic team of employment lawyers in both Aberdeen and Glasgow, who are able to advise you on any employment law matter, including your rights in relation to maternity leave and paternity leave. To find out how we can help you solve your legal problem, please call 0141 433 2626. Alternatively, please complete our online enquiry form. We look forward to hearing from you.