There are no uniform rules on surrogacy across the EU, not least because it is prohibited in some member states. It is allowed in the UK and parental rights can be acquired by "intended parents" through a "parental order" but there are no specific rules on maternity or paternity leave for intended parents.
In CD v ST, the claimant and her partner had a child by a surrogate mother. Although the claimant was not pregnant and 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.
The claimant unsuccessfully applied for paid time off from her NHS employer. When she brought pregnancy/maternity discrimination claims the tribunal referred it to the European Court to decide whether EU maternity and discrimination law covers an intended mother.
The Advocate General has issued a formal Opinion (of significant weight but not formally binding on the Court itself) 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, provided the requirements of the national law are satisfied. This applies whether or not she breastfeeds.
On the length of maternity leave, the Opinion says that the EU minimum of 14 weeks' leave cannot be given to both mothers; leave already taken by the surrogate mother must be deducted from the intended mother's. But the compulsory maternity leave (two weeks in the UK) must be granted to both women in full. The division of the remaining ten weeks would be for agreement between the mothers.
The Opinion makes it clear that this applies to pregnancy and maternity leave protection only – both the Advocate General in this case and in another Opinion issued on the same day on a case referred from Ireland said that surrogacy is outside the scope of the general EU equal treatment laws.
It remains to be seen what approach the European Court will take to the issue when it gives its final decision. Meanwhile, the UK Government is proposing (as part of the shared parental leave proposals, scheduled for 2015) that prospective parents in a surrogacy arrangement who meet the criteria to apply for a parental order are to be eligible for statutory adoption leave and pay and for shared parental leave and pay (subject to the complex rules about qualification). Both intended parents would be entitled to time off to attend two antenatal appointments with the surrogate mother.