European Union decides surrogate mothers can take maternity leave

The European Court of Justice in 2013 advised that a British woman who had a child through a surrogate mother is entitled to paid maternity leave.

Women who adopt a child in the UK are entitled to the same statutory adoption pay as pregnant mothers, but families who choose to use a surrogate mother to carry their baby are not covered by current legislation. However, this is changing and we look at the details here.

The British woman, who worked for the NHS, took care of the baby and began breast-feeding it within an hour of its birth. She then discovered that her employer was not obliged to give her paid maternity leave, although they later reconsidered and granted paid adoption leave. However, the woman claimed unfair dismissal on the grounds of pregnancy and maternity discrimination, and the Employment Tribunal asked the Court of Justice of the European Union to decide whether she was entitled to maternity rights under EU law.

The Court’s Advocate General said that as surrogacy is legal in Britain, surrogate parents should be permitted to the same rights as birth and adoptive parents (regardless of whether the mother breast-feeds the child or not). The Advocate General added though that if the woman who had actually given birth to the child also takes maternity leave, then the period of her maternity leave must be deducted from the total leave taken by the mother who is assuming legal guardianship of the child. Both mothers, however, should get at least 2 weeks leave (as this is the minimum time in the UK that can be taken off for maternity leave).

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