When is a mother, not a mother?  (UK)

In the two separate cases of CD v STC and Z v A differing Advocate General opinions had previously been published on the same day, giving rise to uncertainty concerning what rights to leave (if any) commissioning mothers in a surrogacy arrangement have.

(It should be noted that the opinions by the advocate generals are not binding on the Court but it more often than not (80% of cases) follows the advice in its final rulings)

In CD, it was held that a commissioning mother had the right to maternity leave under the Pregnant Workers Directive, regardless of whether or not she intended to breast feed the child. By contrast in Z, the Advocate General suggested that the health and safety protection provided by the Pregnant Workers Directive is only intended for women who give birth to a child and therefore a mother who has had her genetic child via a surrogacy arrangement has no right to maternity leave.

Both cases went before the European Court of Justice (“ECJ”) who held that commissioning mothers under a surrogacy arrangement do not have the right to maternity leave under the Pregnant Workers Directive and that employers who refuse mothers such leave are not discriminating against them on grounds of sex or disability under EU law. 

The ECJ stated that the purpose of maternity leave provided for by the Pregnant Workers Directive is to protect the mother’s health, as she is vulnerable because of her pregnancy. Although maternity leave also protects the special relationship between a woman and her child, that objective only concerns the period after pregnancy and childbirth. The grant of maternity leave therefore presupposes that the worker has been pregnant and given birth. 

There are no uniform rules on surrogacy across the EU, not least because it is prohibited in some member states. It is allowed in the UK and parental rights can be acquired by "intended parents" through a "parental order" but there are no specific rules on maternity or paternity leave for intended parents. 

The UK Advocate General, Juliane Kokott, in my opinion took a fairer view of this problem. She said that an intended mother who has a baby through a surrogacy arrangement has the right to receive maternity leave provided for under EU law. However, she pointed out that maternity leave which the surrogate mother has taken must be deducted from the leave of the intended mother. In any case, the leave of the intended mother must amount to at least two weeks. Both the surrogate mother and the intended mother must be given at least two weeks of paid leave each. The remaining 10 weeks of the EU's required 14 must be shared between the two, taking into account the protection of "the woman who has recently given birth and the child's best interests."   

What is in the best interests of the child? You be the judge!

See more:-

http://www.lexology.com/library/detail.aspx?g=20b1bdc8-f009-4e79-aaf4-bda2a4869397 

http://www.lexology.com/library/detail.aspx?g=df91385d-1c14-42f0-9151-0fa0dd52ad57