CJEU decision on surrogate mothers

The Court of Justice of the European Union (CJEU) has gone against the opinion of the Advocate General in deciding that surrogate mothers are not entitled to maternity leave even in circumstances where they may breastfeed or do breastfeed the baby following the birth, and that an employer’s refusal to provide maternity leave to a woman who has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex.

The questions around surrogacy were referred to the CJEU from a UK employment tribunal where an intended mother who had a baby through a surrogacy arrangement was refused paid leave by her employer, an NHS Foundation Trust.

The UK Government has already committed to making intended parents in a surrogacy arrangement eligible for statutory adoption leave and pay and shared parental leave from 2015.

To read the decision click here.