A mother of a baby born via surrogacy recently submitted a claim to the High Court jointly with the not-for-profit organisation, Surrogacy UK, to challenge the current law in the UK which does not extend the right to paid time off to parents of children born through a surrogacy arrangement. Currently, adoptive mothers, as well as mothers who give birth naturally enjoy a statutory entitlement of up to 52 weeks maternity leave, 39 weeks of which will be paid.
As surrogate births are steadily increasing in the UK, pressure is mounting on the UK Government to amend the legislation as a result of claims that the current position constitutes a breach of its obligations under Article 8 of the Human Rights Act 1998 (the right to a private and family life). The matter was raised in Parliament in May earlier this year by John Healey MP and in July, Norman Lamb, Employment Relations Minister confirmed that the Government is looking into the possibility of extending maternity leave and pay to women who have had a child through surrogacy (the “Intended Mothers”).
Many employers in the past have chosen to pay employees having children through surrogacy arrangements maternity pay regardless, however, they have not been able to claim back the statutory element from the Government. However, in this particular case, the employer had refused to do so, allowing the Intended Mother to take only unpaid leave to look after and bond with her child. Furthermore, when she contacted her employer to arrange her return to work, she was then made redundant, a decision which would be a great deal more risky for the employer in terms of legal repercussions had she been on maternity leave at the time. The employee raised a claim against her employer in the Employment Tribunal which ruled that the issue had to be decided by the European Court of Justice (“ECJ”).
It seems that this may be an anomaly in the legislation, which, given the rise of surrogate births in the UK seems likely to be amended once this case is heard. Of course, the ECJ will also have to consider the position of Surrogate Mothers who are currently entitled to full maternity rights and pay despite the fact that the babies will be handed over to the Intended Mothers shortly after birth.
In the meantime, it would seem that employers who seek to take advantage of the inconsistent approach may find themselves subject to criticism and future challenge. For any further advice in relation in relation to the above, or more generally on maternity, paternity or adoption rights, please do not hesitate to get in touch.
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