Surrogate mothers

Surrogacy is not exactly a common issue for most UK Employers; but its profile has been rising of late due to court action both at home and now in Europe.

It may be a surprise for many to hear that under current UK Maternity laws, a woman who “acquires” a child through a surrogate arrangement is not entitled to any maternity rights; pay or leave – unless her Employer agrees to do so. The arrangement is also outside the law on Adoption Leave and Pay, which only provides for time off if the adoption is through a “recognised adoption agency”, not a surrogate arrangement.

The birth mother of a baby however is entitled to take up to 52 weeks leave and this still applies even if she gives up her baby on day one after the birth under a surrogacy agreement!

For some time now, the government has been considering plans to extend the scope of adoption leave and pay to include the “intended” parents of children born via a surrogacy arrangement. The High Court was involved in reviewing the UK position back in 2012 when two claims that challenged the status quo were taken up by Surrogacy UK and a woman directly affected by the lack of employment protection.

In the meantime, two separate cases have now reached the European Courts for opinions.

Before cases in the European Courts reach a full hearing, they are heard by an Advocate General. The full court is not obliged to follow the decisions or opinions of the Advocate General. This does appear to be an unnecessary stage in my opinion; but I guess that opinion could be overturned later!

The cases involve women who have received a baby through a surrogacy arrangement and are seeking rights to take time off – a form of maternity leave. In the cases C D v S T and Z v A Government Department, different Advocates General have reached two very different conclusions – one favouring entitlement to paid leave and the other not; very helpful! (I repeat, what is the real point of this stage in the process then??).

The first case, CD v ST is a UK case, referred from the Employment Tribunal in Newcastle. The Advocate General felt that an intended mother was entitled to some maternity leave when a number of points are satisfied, including that she takes the child into her care, that surrogacy is permitted in the Member State concerned, and if its national requirements are satisfied.

The second case was a referral from Ireland. Here a different Advocate General ruled that the current law was clearly aimed at protecting a pregnant woman and a woman who had given birth, ruling out any rights for the intended mother.

[The judge in favour of maternity rights happens to be female whilst the judge ruling against just happens to be a man – one for conspiracy theorists maybe?]

These two separate cases are now awaiting a ruling from the full court, which as I have said can choose to follow or ignore the advice from the Advocate General.

The Government has stated its intention to introduce some rights in this area, but I think they would be well advised to await the outcome of these two cases before finalising its proposals.

We await the final ruling with interest and we may also be interested in the gender of the deciding judges!

I will update this article as soon as there’s an outcome – watch this space….

Meanwhile let’s take a look at Maternity and Family Friendly Rights as a whole – this areas has developed into a complex series of regulations and legal precedent.

It is therefore vital to understand the current situation in view of the high levels of compensation available!

Our half a day workshop reviews the general legislation on maternity, company statutory maternity pay and brings you up to speed with the changing laws on maternity rights (maybe even bigger changes if the surrogacy case is in favour of giving surrogate mother’s rights too!)

For more information on this training course or any other areas of Employment Law you wish to receive advice about, feel free to get in touch:

Derek Eccleston MA FCIPD
01789 470700

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