In two decisions published earlier this week, the European Court of Justice has said that the Pregnant Workers Directive does not confer any EU-wide maternity rights on mothers who become parents following a surrogacy arrangement. These rulings are of interest to employers in Britain because currently such mothers are not entitled to maternity or adoption leave under domestic law, though the position is due to change in April 2015.
The first of these cases was a reference from an employment tribunal in Newcastle. The claimant had become a mother via a surrogacy arrangement and with her partner had obtained a parental order under the Human Fertilisation and Embryology Act 2008. She took charge of the baby within an hour of its birth and was able to breastfeed it for several months. These factors were not enough to persuade the ECJ that should she be treated in the same way as a birth mother.
The second decision involved parents in Ireland. Surrogacy is not regulated there, so they travelled to California to make the necessary arrangements. The mother was fertile, but had a rare medical condition which meant she could not support a pregnancy. She therefore had IVF treatment, and the fertilised egg was implanted in the womb of a surrogate mother. The claimant and her partner were not only the genetic parents of the child, but under the law of California no other parental rights were recognised. Once again, her attempt to persuade the ECJ that the Pregnant Workers Directive could be interpreted to cover her situation was unsuccessful.
For British parents the law will be changing in April 2015. From that point, an employee who has applied for a parental order under the Human Fertilisation and Embryology Act will be eligible for ordinary and additional adoption leave, subject to qualifying criteria which are likely to be analogous to those that currently apply to adoptive parents.