16 October 2013

Can maternity rights stretch to surrogacy arrangements?

A claim heard in the European Courts has added an interesting twist on the eternally evolving issue of parental rights. In Case C-167/12 - CD v ST the claimant, together with her partner, had a child through a surrogate mother. The claimant started nursing the infant within an hour of the birth and the couple were granted a Parental Order. She lodged a claim against her employer after being denied paid maternity and adoption leave on the grounds that she did not give birth neither did she adopt a child.

In a preliminary decision, yet to be ratified, the Advocate-General (adviser to the court) found that an intended mother has the right to receive some maternity leave. Effectively both mothers (the surrogate and the intended mother) should be allowed compulsory maternity leave (of at least two weeks). Beyond that, the minimum allowed by the European Directive is 14 weeks, and that must be divided between the intended mother and the surrogate

Conclusion  

It must be pointed out that although the CJEU normally follows the opinion of the Advocate-General this is not always the case. Assuming the opinion will be followed, this will mean in future employers would have to allow both surrogate and intended mothers a minimum of 2 weeks maternity leave. Following which they would need to make enquiries into how much leave the surrogate mother intends to take, to calculate how much leave the intended mother is entitled to

This will shortly be academic anyway, since the UK government has recently announced its decision to extend maternity rights to parents through surrogacy, and is in the process of changing UK law through the Children and Families Bill. The new law is currently completing its passage through the House of Lords and is expected to come into force in 2015.  UK law will then apply equal rights for parents through surrogacy, with both straight and gay couples permitted to claim paid time off work to take care of their newborn children