The Advocate General has given her opinion in a case involving entitlement to maternity leave where a Claimant and her partner had a child via a surrogate mother. In this case the couple were granted a parental order but the Claimant was denied paid maternity and adoption leave by her employer on the grounds that she did not give birth to or adopt the child.
The Advocate General's opinion is that the intended mother in a surrogacy arrangement should receive maternity leave as provided for under the Pregnant Workers Directive. The Directive provides for new mothers to receive up to 14 weeks paid leave and the Advocate General has set out that this should be shared between the women so as to avoid a doubling of the entitlement.
If, as in the majority of cases, the Court of Justice for the European Union follows this opinion then it is unclear how this will work in practice. Since 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 it may be that this is brought forward to reflect this decision.
To read the opinion, click here.