EU vetoes maternity leave in surrogate cases

The European Court of Justice has ruled against claims for maternity benefits by mothers whose babies were born through surrogacy in two cases just announced, with the decisions coming weeks after the UK has agreed legislation that will put both intending surrogate and adoptive parents on the same footing as natural parents from next year.

Two mothers who had children through surrogacy have failed in their attempt to win maternity benefits, but the law will be changing from next year.    

Both cases involved mothers who had taken their cases to the European Court of Justice (ECJ) to claim they were eligible to benefits under the EU Pregnant Workers Directive. But unlike the rights for pregnant women, there is no uniform set of rules on surrogacy across the EU, as it is prohibited in some member states.

In the two cases before the European Court of Justice, one involved a mother who took charge of the baby within an hour of birth and was able to breastfeed for several months. Together with her partner, she had obtained a parental order under the Human Fertilisation and Embryology Act 2008, but none of this was enough to convince the ECJ to agree the same rights as a birth mother.

The other was brought by a woman in Ireland, where surrogacy is not regulated. As the woman was medically unable to carry a pregnancy, she and her partner found a surrogate in California, USA to carry their fertilised egg. Despite the baby being their genetic child, and that under California law no other parental rights were recognised, again the ECJ ruled against her claim under the Pregnant Workers Directive.

But in future, under the new Children and Families Act 2014, things will be changing in the UK. From next April, adoption leave and pay will reflect the entitlements available to birth parents. There will be no qualifying period for leave; enhanced pay to 90% of salary for the first 6 weeks; and time off to attend introductory appointments. Intended parents in surrogacy and ‘foster to adopt’ arrangements will also qualify for adoption leave and pay.

Said employment law expert Mark Cornish of Grant Saw solicitors in Greenwich & Blackheath: “The outcome of these two cases before the European Court look surprising on the face of it.  Even if the UK case had failed, it may seem surprising that the Irish case was also unsuccessful, with the claim being made by the genetic parents.

“The rulings are unlikely to influence employer attitudes for the time being, but there will be a very different position when the Children and Families Act comes into force in April 2015.

“Employers and intending adoptive and surrogacy parents who might find themselves unsure as to whether they qualify or not, because of the likely timing of a claim, would be well advised to seek advance guidance on the interim position.”


Pregnant Workers Directive 92/85/EEC


Consultation outcome : Shared parental leave and pay administration



Children and Families Act 2014



This is not legal advice; it is intended to provide information of general interest about current legal issues.