Mothers who have children by surrogacy not protected by EU law

Two recent rulings in the European Court of Justice (ECJ) have highlighted that there is no breach of EU discrimination laws where mothers who have children via surrogacy are denied maternity or adoption leave or pay.

In the first case, CD v ST, a woman identified only as D entered in a surrogacy agreement to have a baby. At no point was she pregnant herself, although she began breastfeeding the baby within an hour of its birth.

Her employer, ST, did not provide leave and pay for mothers in surrogacy cases, which D claimed amounted to discrimination on the grounds of sex and/or pregnancy and maternity under the Equality Act 2010. She also maintained that her rights under the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999 had been breached.

However, the ECJ held that she was not entitled to maternity leave as she had not been pregnant – even though she was breastfeeding, the existing rules presuppose that the woman in question has been pregnant and given birth, which did not apply in D’s case. There had been no sex discrimination as a man organising a surrogacy would have been treated in exactly the same way. Therefore, there had been no breach of EU law.

In a similar case in Ireland, Z v A Government department and anor, Z opted for surrogacy via an American-based agency as she was unable to have children due to not having a uterus. She was unable to take statutory maternity or adoption leave and she had an application for leave equivalent to adoption leave refused by her employer, an Irish Government department.

Z claimed she had been discriminated against on the grounds of gender, family status and disability (the fact she had no uterus) and that her employer had failed to reasonably accommodate her request.

Her claim was rejected by the ECJ, which found that there had been no sex discrimination for similar reasons given in the case of CD v ST. It also found that although Z’s lack of a uterus constituted a limitation resulting from physical, mental or psychological impairments and was indeed of a long-term nature, it did not meet the definition of ‘disability’ within the meaning of the EU Equal Treatment Framework Directive as it was not hindering her from full and effective participation in professional life on an equal footing with other workers.

This rulings highlight that women considering entering into surrogacy agreements will need carefully to consider their legal rights. Equally, employers who are faced with such a situation should speak to an employment law specialist before making any decision to ensure that they are not breaching any regulations.

Mothers who have children by surrogacy not protected by EU law

Lara Murray is an employment law solicitor at Palmers Solicitors, advising clients across a wide range of sectors. She is a member of the Employment Lawyers Association and can assist businesses in relation to all employment law matters, including via Palmers’ HR package. For further information or for details of our HR package, please contact Lara on 01268 240000 or email lmurray@palmerslaw.co.uk. For further information on Palmers, please contact us.