Two conflicting ECJ Advocate General opinions have been given on the issue of whether an intended mother who has a baby via surrogacy should be entitled to maternity leave.

In Z v A Government Department and the Board of Management of a Community School the Advocate General considered that the purpose of maternity leave was to protect those who had given birth and was therefore not available to intended mothers via surrogacy. In C-D v S-T, a different Advocate General opined that the surrogate and intended mother (whether breastfeeding or not) should both be entitled to two weeks' compulsory leave and could then share the balance of the leave entitlement. The ECJ will now have to rule on the point.

The UK Government is proposing to extend adoption and shared parental leave rights to eligible surrogate parents from 2015, under the Children and Families Bill.