A woman who gives birth is always treated as the child’s mother and she has the right to keep the child even if they are not genetically related. A surrogate mother therefore has the right to statutory maternity leave in the same way as other pregnant employees. Parental responsibility over a surrogate child can be transferred to another person either by a parental order or adoption order. Employees who adopt a child jointly via an adoption agency may qualify for statutory adoption leave and paternity leave respectively. However, the legal position regarding those who go down the parental order option in a surrogacy situation is less clear.

In Z v A Government Department and the Board of Management of a Community School C-363/12 (Irish referral), the Advocate General (AG) held that an intended mother who has her genetic child via a surrogacy arrangement does not have the right to at least 14 weeks of maternity leave under the Pregnant Workers Directive (PWD). It was held that the central aim of the PWD is to protect a woman's biological condition in the vulnerable period before and after she actually gives birth. The AG placed significance on the relationship between childbirth and breastfeeding.

The Z decision is inconsistent with another AG in C-D v S-T C-167/12 (UK referral) in which it was held that an intended mother, who was employed by the NHS Foundation, has the right to maternity leave under the PWD. Such leave would, however, need to be shared between the intended and surrogate mothers after the two week compulsory maternity leave period taken by the surrogate mother. This is regardless of whether the intended parent is the genetic mother or intends to breastfeed the child. The AG recognised that, when the PWD was created in the early 1990s, surrogacy was not as widespread as it is now, so it is not surprising that the directive takes biological motherhood as the norm. He also took into account that the PWD should apply to surrogacy to allow the intended parent to bond with the child, integrate it into the family and adjust to her role as a mother.

Until the ECJ rules definitively on the issue, the legal position for employers remains unsettled. If an employer were to allow maternity leave and pay to apply to an intended parent regardless of the present legal position, this may fall outside the rights and obligations under the statutory regime for both the employer and employee. It would also not clarify whether the other intended parent, who is employed by another organisation, would qualify for paternity leave and, if such leave is refused by the employer, whether he or she may claim associative discrimination on 'pregnancy and maternity' grounds because their spouse or partner has been allowed to take maternity leave.

The Children and Families Bill (CFB), parts of which are expected to become law in 2015, will allow statutory maternity leave of 52 weeks and 39 weeks' statutory pay to be shared between parents. This will apply to adopters (including prospective parents in the new 'fostering-to-adopt' system) and eligible parents in a surrogacy situation. The CFB will also set statutory adoption pay at 90% of normal earnings for the first six weeks, thereby bringing it in line with statutory maternity pay.

The right to take time off to attend appointments will also be extended. Prospective parents can take unpaid time off work to attend up to two ante-natal appointments. This will apply to the husband, civil partner or partner of a pregnant woman, the father or parent of an expected child and an intended parent in a surrogacy situation.