In a previous blog, we looked at a legal challenge referred to the European Court of Justice (“ECJ”) concerning a mother’s rights where a baby is born through a surrogacy arrangement.
The case was brought by a mother who took care of her child born through surrogacy within hours of the birth and who also started breastfeeding her child straightaway. Whilst the baby was carried by another woman, the husband’s sperm was used to fertilise the egg and the couple became registered parents of the child following the birth. The child’s mother submitted a request for maternity or adoption leave to her employer to permit her to take paid time off to care for her child. Her employer refused on the basis that she had no statutory entitlement. She then made a claim to an Employment Tribunal for the determination of her rights. The Tribunal referred the issue to the ECJ.
The law in the UK is silent on surrogacy but gives mothers who give birth naturally and also adoptive mothers a statutory entitlement of up to 52 weeks’ maternity leave, 39 of which will be paid. Therefore, the woman giving birth to a child in a surrogacy arrangement will be entitled to maternity leave and pay as they have naturally delivered a child. The rights of the woman who then looks after the child and effectively becomes its mother, have been somewhat unclear up till now.
The ECJ has now delivered its opinion and has confirmed that there are no statutory maternity leave or maternity pay rights for women whose babies are born by surrogacy arrangements under European Law, even where they are breastfeeding and therefore there was no breach by the employer. Although the European Directive is intended to protect the relationship between a mother and a child and specifically refers to protecting those who breastfeed after birth, it was held that the rights under the Directive cover only those who have actually been pregnant and have given birth.
UK law provides for the same rights to leave and pay for employees who have adopted as those who have given birth naturally. However, the adoptive parents need to be able to provide a Matching Certificate to their employer in order to be eligible for the adoption leave. As this case involved a surrogacy birth, there was no such certificate and so the parents didn’t satisfy the test for either maternity or adoption rights. This gap in the legislation has been considered by the UK Parliament previously and it has been suggested that the lack of protection could constitute a breach of Article 8 of The Human Rights Act 1998 – the right to a private and family life.
It may be that the outcome of this case will prompt a change to the UK legislation and it’s possible that maternity rights will soon be extended to protect those mothers whose babies are born through surrogacy arrangements. For further advice on maternity or adoption rights or any aspect of HR or employment law, please do not hesitate to get in touch with Hayley or Hannah.