26 September 2013

Surrogacy

In CD v ST (C-167/12), the Advocate General (AG) ruled that EU maternity laws applied to a woman who had a baby through a surrogate - regardless of whether or not the woman breastfeed the baby. Therefore, the woman is entitled to at least two weeks’ maternity leave and the remainder of the maternity leave not taken by the surrogate.

However, in Z v A Government Department and the Board of Management of a Community School (C-363/12), the AG disagreed [paras. 48 – 52] and ruled that the woman is not entitled to maternity leave. The AG added that the employer’s refusal to grant maternity leave to the woman was not unlawful disability discrimination – because her inability to carry a pregnancy was not a disability that prevented her from having a professional life.

In both cases, the Advocate Generals ruled that the employers’ refusal to grant maternity leave to the women was not unlawful sex discrimination.

The decision of the ECJ is awaited.

In February 2013, the Government proposed to extend statutory adoption leave and pay: and shared parental leave to a parent who had a baby through a surrogate – if the parent satisfies the criteria relating to parental orders under the Human Embryology and Fertilisation Act 2008.