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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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Surrogacy Rights
22 April 2014

Facts

D entered into a surrogacy agreement and as soon as the baby was born D began to breastfeed the baby. D and her husband obtained for a parental order so that they would be legally considered the child's parents; however, when D applied to her employer to take adoption leave, her employer, ST, rejected her request on the basis that she could not produce an Adoption Certificate. D tried to explain that in her situation there was no 'adoption' as such taking place as she and her husband were considered the parents of the new baby. She also tried to argue that adoption and surrogacy was the same thing. ST replied that there was no legal right to surrogacy leave and therefore she was not entitled to either paid maternity leave or adoption leave.

D brought a claim in the Employment Tribunal alleging discrimination on the grounds of sex and/or pregnancy and maternity, claiming that her employment rights had been infringed and she had suffered a detriment as a result of her pregnancy/maternity. She also relied on Articles 8 (right to respect for private and family life) and Article 14 (right not to suffer discrimination) of the European Convention of Human Rights. ST's defence was that the right to maternity leave and pay rested with the child's birth mother (the surrogate) and not D. The Employment Tribunal referred the case to the European Court of Justice ("ECJ").

Decision of the ECJ – Who is entitled to maternity or adoptive rights in a surrogacy arrangement?

The ECJ found that the right to maternity leave under European laws applied only to those women who had the biological connection of giving birth. They held that the aim of the legislation was to protect 1) a woman's biological condition during pregnancy and childbirth, and 2) to protect the special relationship between mother and newborn which would otherwise be disturbed by other burdens such as employment. Therefore, it was necessary for the worker to have been pregnant and have given birth to the child in order for the right to apply. For D, she had used a donor egg and had not been pregnant or experienced birth; therefore, despite breastfeeding the baby, she did not fall with European legal protection. D was also not entitled to take adoption leave as again, there was no 'adoption'.

Comment

This rather literal interpretation of European law by the ECJ may appear unfair to the receiving mother; however, one must remember that surrogacy arrangements are banned in some European countries. The ECJ appears to be treading carefully by giving a decision based on a very literal interpretation of EU and domestic law.

For further information, please contact our Employment Team on 0118 952 7284 or submit an enquiry.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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