Our thoughts on the world of employment law - and beyond.

Rough justice for surrogacy?

Retreating from a sensitive preliminary Opinion by the Advocate-General, the CJEU ruled this week that a 'commissioning' mother, who receives a child via a surrogacy arrangement, does not have the right to maternity leave under the Pregnant Workers Directive ('PWD'). It further decided that denying that intended mother paid maternity leave would not amount to sex, pregnancy or maternity discrimination under the Equal Treatment Directive ('ETD').

The reference to the CJEU came as part of proceedings in the English Employment Tribunal case of 'Ms. D', an intended mother, and her employer; an NHS Foundation Trust.

Ms. D and her partner had a child via a surrogate mother, which Ms. D started mothering and breastfeeding within an hour of the birth. The couple applied for a parental order under the Human Fertilisation and Embryology Act 2008, which (several months later) resulted in their full and permanent parental responsibility for the child.

Granting her only unpaid leave, or the option of reduced hours, the employer refused to allow Ms. D to take maternity or adoption leave because she had not given birth and could not provide the necessary 'matching certificate' for adoption leave purposes. Ms. D brought Tribunal claims, arguing that she had been subjected to a detriment in respect of her maternity leave request contrary to the Employment Rights Act 1996, and that she had been discriminated against because of her sex and/or pregnancy and maternity, contrary to the Equality Act 2010. She argued that both national and EU law provide protection for new mothers, and that as her situation was analogous to that of a biological birth mother, she should receive the same treatment under law.


Issues referred to the CJEU

In her Opinion of September 2013, Advocate-General Kokott suggested the CJEU should find that an intended mother who receives a baby via a surrogacy arrangement has the right to maternity leave under the PWD, regardless of whether she intends to breastfeed the child. However, she reasoned that the employer's denial of that right did not amount to sex, pregnancy or maternity discrimination under the ETD. Ms. D had not suffered a detriment in comparison with male colleagues because of her sex, had not been pregnant, and had not suffered a detriment as a result of taking maternity leave.

However, the CJEU departed from the Advocate-General's balanced conclusions: denying all rights to maternity protections for commissioning mothers. It held that the grant of maternity leave pursuant to the PWD presupposes that a worker has actually given birth. As a result, Ms. D was not entitled to maternity leave. Agreeing with the Advocate-General's reasoning on the treatment of intended mothers under the ETD, the CJEU further held that Ms. D had not been discriminated against on grounds of sex, pregnancy or maternity.

This seemingly inflexible final decision results from a literal reading of the EU legislation. Article 2 of the PWD expressly gives protection only to pregnant workers, those who have recently given birth, and those who are breastfeeding. The Directive does not contain specific provisions on maternity leave concerning commissioning mothers under surrogacy arrangements.

In its judgment, the CJEU stated that;

'maternity leave from which the female worker benefits is intended, first, to protect a woman’s biological condition during and after pregnancy and, secondly, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.'

Having acknowledged the 'special relationship' of mother and child, and the need to protect it, it is somewhat surprising that the Court ultimately decided that the purpose of maternity leave provided for by the PWD is simply;

'to protect the health of the mother of the child in the especially vulnerable situation arising from her pregnancy.'

Citing previous case law, the Court reiterated that 'that objective […] concerns only the period after 'pregnancy and childbirth.'' From a purely medical perspective, one can appreciate how the mandatory two week period of leave prescribed by the Directive should be to ensure the birth mother's health. From the employment perspective, this is exactly why it is compulsory. Absent any post-natal health problems, however, what of the further 12 weeks of maternity leave permitted by the PWD? Can this extended period purely have been prescribed for the protection of the mother's health? I would contend that it was in fact intended to allow for the formation of the mother-child 'special relationship'.

It seems unfair that even after 22 years of the PWD's implementation commissioning mothers should still fall into a gap between maternity and adoption laws, and odd that the CJEU should not have taken this chance to align the rights of all new mothers.

However, this anachronistic state of play might shortly be addressed in England and Wales thanks to provisions of the Children and Families Act 2014, which received Royal Assent earlier this month. Section 122 gives the Secretary of State the power to make regulations providing for statutory adoption leave to be extended to qualifying employees who have applied, or intend to apply, for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008. As and when such regulations are enacted, commissioning mothers (or fathers) will receive equal treatment to that currently enjoyed by birth mothers and adoptive parents under English law, and the 'special relationship' about to commence will be afforded the same protections as those for more traditional routes to parenthood.

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