In the two separate cases of CD v STC and Z v A differing Advocate General opinions had previously been published on the same day, giving rise to uncertainty concerning what rights to leave (if any) commissioning mothers in a surrogacy arrangement have.

In CD, it was held that a commissioning mother had the right to maternity leave under the Pregnant Workers Directive, regardless of whether or not she intended to breast feed the child. By contrast in Z, the Advocate General suggested that the health and safety protection provided by the Pregnant Workers Directive is only intended for women who give birth to a child and therefore a mother who has had her genetic child via a surrogacy arrangement has no right to maternity leave.

Both cases went before the European Court of Justice (“ECJ”) who held that commissioning mothers under a surrogacy arrangement do not have the right to maternity leave under the Pregnant Workers Directive and that employers who refuse mothers such leave are not discriminating against them on grounds of sex or disability under EU law.

The ECJ stated that the purpose of maternity leave provided for by the Pregnant Workers Directive is to protect the mother’s health, as she is vulnerable because of her pregnancy. Although maternity leave also protects the special relationship between a woman and her child, that objective only concerns the period after pregnancy and childbirth. The grant of maternity leave therefore presupposes that the worker has been pregnant and given birth.

This decision, although legally sound, is manifestly unfair and in my view is based on a flawed premise. Why is there less of a special relationship between a commissioning mother and her child, particularly if the child is genetically hers or her partner’s, than if she had carried and given birth to the child herself? Isn’t this direct discrimination against an individual on grounds of their infertility? (See comments on disability discrimination further below.)

Further the Pregnant Workers Directive came into effect in 1992, some 22 years’ ago, when surrogacy arrangements were less common and surrogacy was illegal in many countries. Homosexuality used to be illegal in this country too and now homosexual couples can get married. The law needs to be brought up to date to reflect societal change and the fact that more couples are unfortunately suffering infertility issues as they wait until later in life to have children, whether for financial or career related reasons, or a combination of both.

With regards to sex, pregnancy and maternity discrimination the ECJ said that there was no sex discrimination, as a commissioning father who had a baby through a surrogacy arrangement would be treated in the same way as a commissioning mother. Neither is entitled to paid leave equivalent to maternity leave. Further, a commissioning mother cannot be subject to less favourable treatment related to her pregnancy, as she has not been pregnant.
Under European case law, the concept of disability is different to that under English law, and refers to “an impairment that may hinder the full and effective participation of a person in professional life on an equal basis with other workers.” The inability to have a child by conventional means does not prevent a commissioning mother from having access to, participating in, or advancing in employment. Therefore the fact that Z could not give birth because she had no uterus was not a hindrance to the exercise of her professional activity and therefore her condition was not a disability.

It may be possible that someone working in Great Britain with a similar condition to Z’s could pursue a disability discrimination claim, as the definition of disability under the Equality Act 2010 is different i.e. the impairment has to have a substantial adverse effect on the employee’s ability to carry out normal day to day activities. However, it is unlikely that someone without a uterus would satisfy this condition.

The employee would also have to prove that the employer’s refusal to allow her paid leave amounted to a failure to make reasonable adjustments to accommodate her disability or to discrimination arising from disability.
The ECJ’s decision means that a commissioning mother is not entitled to paid leave equivalent to maternity or adoption leave on the birth of her child. However the Children & Families Act 2014 received Royal Assent on 13 March 2014 and therefore this may change. Section 122 gives the Secretary of State the power to make regulations providing for statutory adoption leave to be available to employees who have applied or intend to apply for a Parental Order under Section 54 of the Human Fertilisation & Embryology Act 2008. Under that Act, a Court can make a Parental Order under which the child will be treated legally as the applicant’s own where the child has been born to a surrogate and the gametes of at least one of the applicants were used to create the embryo. However, there is a loophole. What if a couple choose to use a surrogate in circumstances in which it is neither of the couple’s biological child? For example, they may want to use a relative’s egg or sperm. Whilst this may be a less likely scenario and a couple in such a case may be more likely to opt for adoption, the intention behind the legislation can’t be that they should be discriminated against in this way, merely because they are infertile.