The Advocate General of the European Court of Justice (“ECJ”) has given her key opinion this week on surrogacy arrangements and the rights of both the birth mother and the employee benefitting from a surrogacy arrangement in respect of Maternity Leave and other surrounding benefits.<\/p>\n
In February 2012, the Newcastle Employment Tribunal referred the case of C-D v S-T ET\/2505033\/2011<\/span><\/em> to the European Court of Justice\u00a0to consider whether, under European law, a woman who becomes a mother by way of a surrogacy arrangement should be entitled to paid Maternity Leave to bond with her baby, establish breastfeeding and maintain and develop her family life.\u00a0 The Newcastle Employment Tribunal found that UK law at that time did not apply to the Claimant’s surrogacy arrangement.\u00a0 European law provides that a woman is entitled to a minimum period of Maternity Leave\u00a0(14 weeks)\u00a0if she is a pregnant worker, a worker who has recently given birth, or a worker who is breastfeeding.<\/p>\n Following this referral, in April 2012, a private member’s bill was introduced seeking to incorporate the right to Maternity Leave, maternity pay and allowance arrangements for parents of babies born to surrogate mothers which are not less favourable than\u00a0available to traditional non-surrogate parents.<\/p>\n The Advocate General\u00a0has now provided her opinion on this key case\u00a0and the questions which the Newcastle Tribunal originally referred to the ECJ.\u00a0 The case was heard by the ECJ in March 2013, however a Judgment is still eagerly awaited.\u00a0 Firstly, she indicated that regardless of a mother’s intention to breastfeed the child, a mother receiving a baby by way of surrogacy arrangement will have the right to receive Maternity Leave.\u00a0 Secondly, she indicated that the Maternity Leave must last a minimum of two weeks, but the period of leave may be offset against any Maternity Leave the birth mother takes in a surrogacy arrangement (noting that in the UK, it is a criminal offence for a woman to return to work within 2 weeks of\u00a0giving birth).\u00a0 Finally, the Advocate General confirmed that the Claimant in this particular case\u00a0had not been subjected to a detriment by reason of sex, pregnancy or Maternity Leave.\u00a0 The reason for this appears to be that the Claimant in this case was not, herself, pregnant, and had not, herself, given birth, meaning that she could not successfully claim under current discrimination legislation.<\/p>\n This case is merely an opinion of the Advocate General and is not yet binding in law.\u00a0 There are also elements of it which appear to be contradictory. It will be interesting to see what the\u00a0 ECJ decide on the matter and whether their decision will result in a need for the Government to change the UK law on maternity rights.<\/p>\n","protected":false},"excerpt":{"rendered":" The Advocate General of the European Court of Justice (“ECJ”) has given her key opinion this week on surrogacy arrangements and the rights of both the birth mother and the employee benefitting from a surrogacy arrangement in respect of Maternity Leave and other surrounding benefits. In February 2012, the Newcastle […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[6,7,39,18,51],"class_list":["post-366","post","type-post","status-publish","format-standard","hentry","category-uncategorised","tag-plib","tag-employment-law","tag-employment-rights","tag-hr","tag-maternity-rights"],"yoast_head":"\n