Women using surrogacy to become mothers are not entitled to maternity or adoption leave under European Union (EU) law, the European Court of Justice (ECJ) has ruled.

The judgments were given in response to referrals made by a UK and an Ireland employment tribunal concerning claims brought by two women, Ms D from the UK and Ms Z from Ireland (reported in BioNews 734). Both women used surrogacy to become mothers and have since been granted parental responsibility over their children. Ms Z is also the genetic mother of the child. However, both women have been refused paid maternity or adoption leave by their employers on grounds that they had not been pregnant and the children had not been adopted.

The ECJ said that the Pregnant Workers Directive, the current European law that governs maternity leave, only covers pregnant workers, workers who have recently given birth and workers who are breastfeeding. The court also found that the directive was intended to protect the health and safety of a female worker before and after her pregnancy, rather than giving women paid leave to bond with or take care of the newborn. Since mothers using surrogacy have neither been pregnant nor have given birth themselves, they do not fall within the scope of the directive, even if they are breastfeeding the child.

The ECJ also interpreted two other EU directives that prohibit discrimination at work on grounds of sex and disabilities. The court found that an employer's refusal to grant such leave to a commissioning mother does not constitute discrimination on either ground. There would be no discrimination on grounds of sex, as the father of the child also does not benefit from maternity leave under the directive. A woman's inability to bear a child on her own also does not hinder her 'full and effective participation in professional life', and therefore is not a 'disability'.

However, the ECJ added that the EU law only sets a minimum level of protection that member states have to follow, leaving them free to apply more favourable rules to benefit women using surrogacy.

Commenting on the case, Vanessa Hogan of law firm Hogan Lovells said: 'Advances in medical technology in recent years have made surrogacy arrangements more common. These decisions show that laws that were drafted two decades ago do not cater for such advances'.

Marian Bloodworth of Berwin Leighton Paisner also noted: 'The ECJ's narrow interpretation that only birth mothers get maternity leave goes counter to the prevailing trend in the UK, which is to recognise the importance of intended mothers, whether through surrogacy or adoption, to have time off from work in order to allow them to bond with their new baby or child'.

In the UK, this legal loophole has been closed by the proposed Children and Families Bill. British mothers who raise children delivered through surrogacy arrangements will be given the same right to maternity leave as other mothers who have given birth.

Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.