The two women who brought claims in the European Court both used surrogate mothers in order to have a child. In CD v ST, the claimant and her partner had a child by a surrogate mother. Although the claimant did not give birth, she did breastfeed from the time the child was born. A few months after the birth the claimant and her partner were granted a parental order.
In Z v A Government Department and the Board of Management of a Community School, a case from Ireland, Z and her husband had a child as a result of an agreement with a surrogate mother in California. Genetically, the child is the couple’s and, under Californian law, Z and her husband are considered the baby’s parents.
Both women applied for paid leave equivalent to maternity leave or adoption leave. The applications were refused on the grounds that D and Z had never been pregnant and the children had not been adopted by the parents. When they brought pregnancy/maternity discrimination claims the tribunals in the UK and Ireland referred them to the European Court to decide whether EU maternity and discrimination law covers an intended mother.
The cases produced opposing Advocate General Opinions last year; inCD v ST the Advocate General considered that an intended mother who takes the child into her care following birth has the right to receive maternity leave under EU law after the birth. The AG in the other case took a contrary view, concluding that the Pregnant Workers' Directive only protects women who give birth.
The European Court has now followed the AG's Opinion in Z and decided that only the mother giving birth can take maternity leave. Breast feeding a baby is not sufficient in itself to entitle a woman to protection under the Directive. In addition, it is not direct sex discrimination to refuse the intended mother maternity leave in circumstances where the intended father would have no such entitlement. There is no entitlement to adoption leave under EU law – it is a matter for individual member states whether to grant it.
Meanwhile, in the UK, as part of the shared parental leave regime which will start in April next year under the Children and Families Act, prospective parents in a surrogacy arrangement who meet the criteria to apply for a parental order will be eligible for statutory adoption leave and pay and for shared parental leave and pay (subject to complex rules about qualification). Both intended parents will be entitled to time off to attend two antenatal appointments with the surrogate mother.