News & Views

ECJ in conflict over maternity leave and surrogacy

BY Heather Kemmett
Employment law
BG Purple

Under the Pregnant Workers Directive (PWD) a woman can take maternity leave if she is pregnant, has recently given birth, or is breast feeding. These rules are relatively clear for natural pregnancies, but where do surrogacy pregnancies fit into the framework?

A mother who is unable to give birth to a child and uses a surrogate is not actually pregnant so, at first blush, she is not eligible for maternity leave under the Directive. However, as well as looking after the physical well-being of a pregnant woman both before and after the birth, the PWD also aims to nurture the crucial bond between mother and baby in the months after birth.

In a couple of recent cases this ambiguity has been brought into the spotlight. In both cases, expectant mothers who used the services of a surrogate to have babies applied for maternity leave with their employers. The first worker (Z), an Irish teacher, was told that she could not take maternity leave and was offered unpaid leave instead. In the second case the worker (C-D), who was employed by an NHS Foundation, was also refused maternity leave but was offered a career break, annual leave, reduced hours or unpaid leave as an alternative.

While no decision has yet been reached by the ECJ on either case, two Advocate Generals have delivered opinions on the matter. AG opinions are not legally binding; however the Court usually follows them. Here, confusingly, the two opinions (which were delivered on exactly the same day) are directly contradictory so it is unclear how the ECJ will rule.

AG Wahl considering the first case advised that the woman was not entitled to maternity leave. His view was that the PWD is designed to improve health and safety at work for pregnant workers. Given that the worker did not actually bear the child, there was no risk to her health and therefore she needed no protection. Wahl also pointed out that the aim of protecting the bond formed between a mother and her child within these early months is merely a logical follow on from the process of child birth and breast feeding. 

AG Kokott advised in direct contradiction to this opinion. Her view was that, since surrogacy arrangements have legal status in the United Kingdom, genetic mothers should have equal access to maternity rights with mothers who have conventional births. However, she did caution that if the surrogate mother also takes maternity leave then there should be a mechanism to share leave with the genetic mother to reduce the burden on employers. 

It is likely that ECJ judgments in these cases are still some months away and it is not clear which path, if either, the Court will prefer. In the meantime, if your organisation is faced with this tricky conundrum, speak with your Legal Manager who will be happy to advise you on the best route to take.

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