Why mothers by surrogacy are denied maternity leave

The European Court of Justice (ECJ) has decided, in relation to two recent cases, that a non-biological, or commissioning, mother who has a child via a surrogacy arrangement is not entitled to maternity leave and pay under the Pregnant Workers Directive.

The ECJ also held that an employer’s refusal to grant mothers this leave did not amount to sex or disability discrimination under European law.

The decision has serious implications for those who have had, or are considering having, a child via a surrogacy arrangement. It means that as the law stands currently a commissioning mother would not be entitled to paid leave equivalent to maternity or adoption leave when her child is born.

This is the case even though those who have a child naturally or who choose to adopt a child are entitled to paid leave.

The result is a complete lack of protection for those who have turned to, or are considering a surrogacy option, at a time when statistics suggest that demand is rising steadily.

In January this year there were 24 children born to a registered surrogacy parent. Even this figure might represent the tip of the iceberg, as we have no real idea of how many surrogacy arrangements are arranged abroad by British couples in countries such as India and Thailand which do not result in children being registered back in the UK.

The rulings means that there is an extraordinary and undesired gap in legislation that leaves those wanting a child through surrogacy in a state of complete limbo, with no substantive or regulatory support.

At this point in time the ECJ’s decision leaves us in an unacceptable situation where a commissioning mother in a surrogacy arrangement is denied paid leave equivalent to either maternity or adoption leave on the birth of her child.

Thankfully this situation looks set to improve. It is anticipated that from April 2015 the Children and Families Act will allow surrogacy parents to have equivalent leave and pay rights to adoptive. However, such a process is bound to involve undue red tape and cost.

Katherine Maxwell is head of employment at Moore Blatch