For the time being, employers are not required to provide paid leave rights to mothers who have a child using a surrogate, in contrast with those who adopt.

Last year two ECJ Advocate General opinions reached opposite conclusions on the issue of whether an intended mother who has a baby via surrogacy should be entitled to maternity leave (see here). The ECJ has now ruled that she is not entitled to paid leave under EU law, whether or not she breastfeeds the baby. There is no EU law specifically covering rights on parenthood through surrogacy and the claim could not be crowbarred into existing legislation: the Pregnancy Workers Directive only protects women who have actually become pregnant, there is no sex discrimination, and the claimant’s infertility did not amount to a disability. (Z v A Government Department and the Board of Management of a Community School ;C-D v S-T, ECJ)

UK employees will therefore have to wait until the Government exercises its power in the Children and Families Act 2014 to extend leave rights to parents through surrogacy, expected to be in 2015.