The European Court of Justice (ECJ) has ruled that parents who have a child through a surrogacy arrangement are not entitled to paid leave equivalent to either maternity leave or adoption leave in the UK (CD v ST [2014]).
The Court, which resolves disputes in relation to European Union (EU) law, were asked by an employment tribunal to rule on the case of a woman refused paid leave by her employer when her baby, conceived as a result of a surrogacy arrangement, was born.
Although the UK has provisions for both maternity and adoption leave it does not currently have arrangements for leave for the intended parents of a surrogacy arrangement. The woman's employer argued that she was not entitled to paid maternity or adoption leave as she had not been pregnant and the baby had not been adopted. The woman claimed her rights under the Pregnant Worker's Directive (Council Directive 92/85 EEC 1992) had been breached and that she had been discriminated against on the grounds of gender and disability contrary to the Equal Treatment Directive (Council Directive 2006/54/EC 2006).
Pregnant Workers Directive
The EU promotes a single market with harmonisation of laws within member states. The Pregnant Workers Directive was introduced to encourage improvements in the health and safety at work of both pregnant workers and workers who have recently given birth or are breastfeeding (Council Directive 92/85 EEC 1992, article 1).
‘Parents who have a chiLd through a surrogacy arrangement are not entitled to paid leave equivalent to either maternity leave or adoption leave in the UK’
Article 2 of the Pregnant Workers Directive defines the workers protected by its provisions:
Under EU law a worker who meets one of those definitions is entitled to a minimum period of maternity leave and cannot be discriminated against in relation to pregnancy or maternity leave (Council Directive 92/85 EEC 1992, article 14 (1)).
A woman would also be discriminated against under the Equal Treatment Directive if she is treated unfavourably for reasons of pregnancy or maternity leave (Council Directive 2006/54/EC 2006).
The ECJ ruled that the woman could not benefit from the provisions of the Pregnant Workers Directive and she had not been discriminated against. The Court held that the purpose of the Directive was to improve workplace health and safety for pregnant women. The maternity leave provisions of the directive specifically related to the period of confinement and birth to protect women during a vulnerable period arising from their pregnancy. A commissioning mother in a surrogacy arrangement does not therefore fall within the scope of the Pregnant Workers Directive.
The ECJ further held that denying paid leave to the commissioning mother was not discrimination on the grounds of gender as the commissioning father was also not entitled to paid leave.
Discrimination on the grounds of disability was also rejected. The Court ruled that although a woman's inability to bear a child may be a source of great suffering to her, the concept of disability for the purpose of the Equal Treatment Directive related to a condition that hindered a person's full and effective participation in their professional life. The inability to have a child does not prevent the commissioning mother from fully participating in her employment (CD v ST [2014]).
Leave for commissioning couples
The ruling in CD v ST [2014] means that commissioning couples are currently unentitled to paid leave from their employer on the same terms as maternity or adoption leave. The ECJ did, however, stress that the Pregnant Workers Directive set minimum requirements for maternity leave and it was open to member states to go further by making special provision for leave in relation to surrogacy arrangements.
The UK government will extend current arrangements for leave when a child enters a family as a result of adoption to the commissioning couple in a surrogacy arrangement. Statutory adoption leave is currently 52 weeks comprised of 26 weeks Ordinary Adoption Leave and 26 weeks Additional Adoption leave as well as 2 weeks Ordinary paternity leave (Employment Rights Act 1996, sections 75A, 75B 75D & 80B).
The Children and Families Act 2014 comes into force in April 2015. The Act will update leave arrangements for workers in relation to matters concerning their children. This will include extending the right to leave of workers who have become parents as the result of a surrogacy arrangement but only where they are also in receipt of a parental order (Children and Families Act 2014, section 122).
A Parental Order allows the transfer of parenthood from a surrogate and her husband or partner if she has one to the couple who commissioned the surrogacy arrangement where the conditions of Human Fertilisation and Embryology Act 2008, section 54 are met.
Conclusions
The ruling in CD v ST [2014] confirms that EU laws do not allow commissioning couples an entitlement to paid leave when their child enters the family as a result of a surrogacy arrangement. Midwives are currently required to explain to commissioning couples that their surrogacy arrangement does not give rise to rights to leave or protection under the Pregnant Workers or Equal Treatment Directives.
Midwives are, however, able to tell couples considering having a child through a surrogacy arrangement that the UK government will go further than they are required by EU law and that adoption leave will be extended to those who have a child through a surrogacy arrangement as long as they have been granted a parental order transferring the parenthood of the child to them. This change will occur when the provisions of the Children and Families Act 2014 come into force in the Spring of 2015.