The European Court of Justice has recently advised that a British woman who had a child through a surrogate mother is entitled to paid maternity leave.
[Article updated 2014]
Women who adopt a child in the UK are entitled to the same statutory maternity pay (called statutory adoption pay) as pregnant mothers, but families who choose to use a surrogate mother to carry their baby are not covered by current legislation.
The British woman, who worked for the NHS, took care of the baby and began breast-feeding it within an hour of its birth. She then discovered that her employer was not obliged to give her paid maternity leave, although they later reconsidered and granted paid adoption leave. However, the woman claimed unfair dismissal on the grounds of pregnancy and maternity discrimination, and the Employment Tribunal asked the Court of Justice of the European Union to decide whether she was entitled to maternity rights under EU law.
The Court’s Advocate General said that as surrogacy is legal in Britain, surrogate parents should be permitted to the same rights as birth and adoptive parents (regardless of whether the mother breast-feeds the child or not). The Advocate General added though that if the woman who had actually given birth to the child also takes maternity leave, then the period of her maternity leave must be deducted from the total leave taken by the mother who is assuming legal guardianship of the child. Both mothers, however, should get at least 2 weeks leave (as this is the minimum time in the UK that can be taken off for maternity leave).
The Advocate General’s advice is called an ‘Opinion’ and will now be forwarded for approval by the Court (which usually follows their recommendations).
If the EU Court does accept the recommendations, then changes would need to be made to the UK’s Equality Act. There are no uniform rules on surrogacy across the EU, as it is prohibited in some member states. It is allowed in the UK and parental rights can be acquired through obtaining a ‘parental order’.
The UK Government have already proposed that prospective parents in a surrogacy arrangement who apply for a parental order are to be eligible for statutory adoption leave and pay and for shared parental leave and pay, ordinary paternity leave and pay – provided they meet the eligibility critiera – from 1st December 2014.
In addition, from 1st October 2014, both parents are also entitled to take unpaid time off work to attend two antenatal appointments with the woman carrying the child.
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Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
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