The number of surrogate babies is rising. According to an article in The Independent, in the past six years, there has been a 225% increase in the number of babies registered in Britain after being born to a surrogate parent. Sadly, a recent judgment from the European Court of Justice (ECJ) in the case of C-D v S-T C-167/12 has highlighted that the legal provisions which provide parental rights in the workplace are not keeping pace with this changing situation. 

At the end of March, the ECJ held that a mother who becomes a parent through a surrogacy arrangement (even if she is the baby’s biological mother) is not entitled to the paid leave that any other new parent would receive by law. The case was referred to the European Court by a UK Employment Tribunal. The employee (“the commissioning mother” who assumed care of the baby born to the surrogate mother), was heavily involved in the baby’s life from the outset and breastfed the baby within an hour of the birth. She continued to breastfeed the child for three months.

The commissioning parents had obtained a Parental Order under s54 of the Human Fertilisation and Embryology Act 2008, which meant that they were treated in law as the legal parents of that child. However, the court held that the decision of the employer (a NHS Trust) to deny the commissioning mother both paid maternity and adoption leave was correct, as she herself had not given birth to, or adopted the child. The court also held that the refusal of the employer to provide maternity leave to a commissioning mother does not constitute discrimination on the grounds of sex contrary to the Equal Treatment Directive.

The court noted that maternity leave is intended to firstly, protect a woman’s biological condition during and after pregnancy, and secondly, to protect the “special relationship” between a woman and her child over the period which follows pregnancy and childbirth. The Court therefore held that for the relevant legal provision to apply (Article 8 of Directive 92/85), the worker must have actually been pregnant and given birth to a child. Therefore, a worker who has not been pregnant, even if she has breastfed the child, and is the child’s biological mother, falls outwith the  scope of the relevant provision in the legislation.

With regards to the claim on sex discrimination, the Court held that this could not be the case, as a commissioning father would be treated in the same way as a commissioning mother in a comparable situation. No discrimination on the grounds of sex had therefore occurred.

A setback for parental rights

The Court’s decision  comes as a surprise and a setback for parental rights. The Judgment seems to apply the letter of the law rather than the spirit. In particular, why should there be less of a special relationship between a woman and her child, if that child becomes hers as a result of a surrogacy arrangement, particularly if the child is biologically hers or her partner’s? The fact that paid adoption leave is legislated for, at the exclusion of surrogacy arrangements, is illogical. If the commissioning mother in this case had adopted a child, she would have been awarded adoption leave which largely mirrors the entitlements to maternity leave. Why surrogacy should be any different, is an unanswered question. This loophole needs to be addressed urgently, particularly as surrogacy is increasingly chosen as a route to parenthood for a variety of reasons. Infertility problems are on the increase, surrogacy is a suitable choice for many same-sex couples, and professional career driven individuals are frequently waiting until later in life, when they are more established in their careers, to have children.

It is difficult to follow how a Judgment that penalises a woman due to an inability to carry children herself can be anything other than discriminatory, although the Court did consider whether her gynecological condition construed a disability, and found on the facts that it did not. The court did empathise with the plight of the commissioning mother and noted that "a woman's inability to bear her own child may be a source of great suffering for her". However, this will be of little consolation to intended parents in a surrogacy arrangement who may struggle financially without the legal protection of paid parental leave to care for their newborn child and without the right to return to their previous job or a similar alternative role.

Thankfully, the decision appears to be out of step with the wider thinking of the UK government. The Children and Families Act, which gained royal assent on 13 March, includes provisions which will enable the commissioning parents in a surrogacy arrangement to utilise adoption leave and pay. Sadly though, with the changes not expected to take effect until April 2015, this change will come too late for many families.