In the recent cases of CD v ST and Z v A Government Department and the Board of Management of a Community School, the Court of Justice of the European Union  clarified the position regarding the protections and benefits that should be afforded to mothers having children through surrogacy arrangements and in particular whether intended mothers through surrogacy benefit from the minimum European protection given the pregnant mothers.

Current EU law

The European Pregnant Workers’ Directive sets minimum standards of protection for pregnant workers and those on maternity leave. However, it does not specifically govern the protections to be afforded to surrogate parents. Recent debate has questioned whether the Pregnant Workers Directive entitles those who become mothers through surrogacy arrangements  to equivalent protection and benefits, notwithstanding that they have not given birth.

Current UK law

There is currently no legislation in the UK to guide employers on how they should deal with surrogate parents in the workplace. It is well established that employers must provide certain protections and benefits to pregnant workers and adoptive parents, but there is no requirement to offer the equivalent to surrogate parents. In practice, many employers will choose to offer surrogate parents protections and benefits equivalent to those offered to adoptive parents, but there is no obligation on them to do so.

CJEU decisions

The cases concerned a hospital employee in the UK and a teacher in Ireland respectively, both of whom had children using surrogate mothers as they were unable to have children themselves. Both brought claims of discrimination in their local tribunals which were referred to the CJEU.

The key findings of the CJEU were as follows:

  • The Pregnant Workers’ Directive does not require a member state to allow a mother who has had a baby through a surrogacy arrangement to  take maternity leave or its equivalent.
  • A refusal to grant paid leave to an intended mother did not (in those cases) amount to sex and/or disability discrimination.

Maternity Rights

The CJEU found that the primary aim of the Pregnant Workers Directive, “is to protect the health of the mother in the especially vulnerable situation arising from her pregnancy”. The Court acknowledged that, although maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, that objective concerns the period after pregnancy and childbirth only, which does not apply to an intended mother via surrogacy.

The European Directive represents the minimum standards that UK legislation must adhere to. Whilst the UK may implement legislation which goes over and above the European standards, there is no requirement to do so.

Sex and disability discrimination

With regard to the discrimination complaints, the CJEU found that, on the facts of these cases, there was no sex or disability discrimination.

There was no less favourable treatment because of sex where the employer would have treated a male parent of a child born via surrogacy in the same way. So where UK employers treat both surrogate mothers and fathers consistently (by offering both no benefits or the same benefits), there is no direct sex discrimination.

With regard to indirect sex discrimination, the CJEU found that there was no evidence put forward to suggest that the refusal of maternity leave in these circumstances puts female workers at a particular disadvantage compared with male workers. This would not prevent workers in the UK from successfully bringing an indirect sex discrimination claim if they are able to collate evidence to support the assertion that female workers are put at a particular disadvantage by a policy of not extending maternity or adoption benefits to surrogate parents. But such evidence could be hard to come by.

The claimant in Z v A was unable to carry a child herself as she did not have a uterus. The CJEU found that this impairment did not meet the definition of a disability under the Equal Treatment Framework Directive as the impairment did not, “hinder the full and effective participation of the person concerned in professional life”. Under the Equality Act 2010, the definition of disability is different, focusing as it does on the person’s ability to carry out normal day-to-day activities. Whilst it may, theoretically, be possible that someone with a condition that renders them infertile might fall within this definition, establishing indirect discrimination or a failure to make reasonable adjustments would not be a straightforward matter.

Future developments

With surrogacy arrangements becoming increasingly popular in the UK, the Government plans to use powers contained in the new Children & Families’ Act 2014 (which received Royal Assent on 13 March 2014) to extend rights to adoption leave and shared parental leave, when introduced next April, to parents through surrogacy when they obtain a parental order (under the Human Fertilisation and Embryology Act 2008).

Such arrangements will go well over and above the minimum standards required under EU law. However, parental orders are only available where the genetic material of at least one of the applicants was used to create the embryo, so this will still leave some surrogate parents without protection. Employers will of course be entitled to offer benefits over and above the minimum standards required by law.

Whilst the new shared parental leave provisions and the extension of protection and benefits to surrogate parents will no doubt be largely welcomed by workers, it will increase the administrative burden upon employers who will, for example, need to amend their existing maternity, paternity and adoption leave policies to reflect the changes.