Two Advocates General of the European Court of Justice have recently given their opinions in distinct and separate cases on the issue of whether an intended mother who has a baby through a surrogacy arrangement is entitled to take maternity leave.

In the first case, C-D v S-T-C, the Advocate General expressed the opinion that an intended mother who receives a baby via a lawful surrogacy arrangement has the right to maternity leave under the Pregnant Workers Directive if she takes the child into her care. The compulsory two weeks’ leave must be granted to both the natural and the intended mother, but, apart from that, a surrogacy arrangement cannot result in a doubling of the maternity leave entitlement arising from a child’s birth so the leave taken by the surrogate mother (apart from her first two weeks) must be deducted from that of the intended mother and vice versa.  The Advocate General also expressed the opinion that, although an intended mother has the right to maternity leave, her employer’s denial of that right will not amount to sex or pregnancy discrimination under the Equal Treatment Directive since she has not been pregnant, has not suffered a detriment as a result of taking maternity leave and has not suffered a detriment in comparison with male colleagues because of her sex.

The above finding can be contrasted with that reached in the second case, Z v A Government Department and the Board of Management of a Community School, the Advocate General’s opinion was that a woman who became a mother under a surrogacy arrangement was not discriminated against when her employer refused her request for paid maternity leave. This was on the basis that the purpose of the Pregnant Workers’ Directive is to protect a woman’s biological condition in the vulnerable period before and after she actually gives birth, although the Advocate General did recognise that, in previous cases, the European Court of Justice has also attached importance to the special relationship that develops between a woman and her child. The Advocate General was of the opinion that it is not sex discrimination under European law for an intended mother’s employer to deny her the right to paid leave on the child’s birth because the employer would have treated a male parent of a child born via surrogacy in the same way.

What do these rulings mean?
The Court is not bound to follow either of the Advocate Generals’ opinions and the law in this area will remain uncertain until the Court makes its decisions in the two cases.

What action should employers take?
Whilst the law remains unclear on the issue of whether or not an intended surrogate parent has access to maternity rights, it is important to remember that they may nevertheless still have the right to take parental leave (or, in some cases, adoption leave) and that a birth mother will have the same maternity rights as any other pregnant employee.