Whilst maternity pay and protection is not an issue for high profile women using surrogates to become mothers, such as Sarah Jessica Parker, it is a very real problem and issue for most average working women who are not Hollywood superstars. It was widely reported in the press last week that a mother who had a child using a surrogate is taking the Government to the High Court to win the right to receive maternity pay. She is claiming that her human rights are being breached by being denied the opportunity to take paid maternity leave to look after and bond with her son.

It is manifestly unjust and unfair and there is no logical explanation why mothers who are fortunate enough to be able to carry a child and give birth naturally should be treated more favourably than mothers who have children using a surrogate because of fertility issues. Fertility problems are on the increase and whilst less than 100 births took place over the last year using a surrogate in the UK, this will increase in time.

In any event, whether or not the child is the biological child of the intended mother, (as is so in the present case), the intended mother should not be treated any differently to an adoptive mother who equally needs time to bond with her new child. It also seems nonsensical that the surrogate mother should have the protection of being able to take up to a year’s maternity leave and have the right to return to the same job and take up to 39 weeks’ paid maternity leave, whereas the only entitlement the intended parent has is to unpaid parental leave which is for a much shorter period than maternity leave (13 weeks and can be capped by the employer at 4 weeks per year), is dependent on the employer agreeing to the request, and at the particular time that the intended mother wants to take it and which does not afford the same protection as maternity leave affords to mothers. It is automatically unfair to dismiss a mother for a reason related to her maternity leave. Further, in a redundancy situation, when suitable alternative employment is available, the mother on maternity leave trumps anybody else who may be better qualified for that suitable alternative employment and that vacancy has to be offered to the mother on maternity leave.

On 19 September 2012, Surrogacy UK also took up the cause and lodged a High Court claim for judicial review to change the law to ensure that intended parents are given the same rights as any other parent and in particular mothers of surrogate babies.

This is a gaping hole in the equality legislation which needs to be urgently plugged. When the legislation was implemented, surrogacy was probably not on the draftsman’s radar. Given that there is talk of extending discrimination law to cover other discrimination in society, for example on the basis of class, the area of surrogacy is one that discrimination legislation should be extended to cover, before the Government considers increasing the protected characteristics covered by existing discrimination law. This needs to be addressed quickly in order to save the mothers and fathers of surrogate babies further unnecessary heartache, particularly when having to deal with fertility issues will already have caused them a great deal of distress.