Legal Issues – Surrogacy Rights

In 2015 under the Children and Families Bill, the Government intends to introduce rights for surrogate parents. This will allow those who are eligible to apply for a Parental Order (a Parental Responsibility Order in Scotland) to take statutory adoption leave and pay and flexible parental leave, providing they meet the other qualifying conditions. In addition, both intended parents will be entitled to time off to attend two ante-natal appointments with the surrogate mother carrying their child.

However, currently there are no specific rules on surrogacy across the EU or maternity and paternity rights for intended parents. Two recent cases regarding surrogacy rights were remitted to the Court of Justice of the European Union (CJEU), one from the UK and one from Ireland, which gave conflicting opinions on surrogacy rights.

In CD v ST (Case C-167/12) – the claimant and her partner had a baby via a surrogate mother. The Claimant started mothering and breastfeeding the baby within an hour of birth and the couple were granted a Parental Order. The Claimant brought a claim to the Employment Tribunal after her employers denied her maternity and adoption leave on the grounds that she did not give birth or adopt the child. Advocate General Kokott was of the view that the birth mother and intended mother are entitled to two weeks’ compulsory maternity leave, regardless of whether or not the intended mother breastfeeds the baby. However, the concept of surrogacy cannot result in doubling of the leave entitlement and the remaining 10 weeks under the Directive should be divided between the women.

The Pregnant Workers Directive provides that member states must provide a minimum of 14 weeks’ maternity leave to mothers and must include compulsory leave of at least two weeks. Each member state of the European Union will implement their own provisions on maternity leave but they must comply with the minimum provisions set by the Directive.

In Z v A Government Department and the Board of Management of a Community School, Advocate General Wahl considered that the aim of the Pregnant Workers Directive was to protect a woman’s biological condition in the vulnerable period before and after she actually gives birth. Therefore, Advocate General Wahl was of the view that an intended mother is not entitled to maternity leave whether or not she breastfeeds the baby.

The conflicting views in these cases are only those of the Advocate Generals and both cases still need to be determined by the CJEU. However, which opinion the CJEU will favour is uncertain. Although the UK has a proposal in place to deal with surrogacy rights, the CJEU’s final decision on these matters could have a potential impact on what changes the UK actually implement and the EU as a whole.

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