Only giving birth gives women maternity rights

Natural mothers get more rights. Picture: PA

In the case CD v ST, a public sector employee and her partner had entered into a surrogacy arrangement. The “commissioning mother” was neither the gestational nor the biological mother of the child. Within an hour of the child’s birth and for three months thereafter, however, she breast-fed her new baby. She sought and was refused paid maternity and adoption leave by her employers. They argued she had neither given birth nor adopted the child and therefore could not rely on the same entitlements to “natural” and adoptive parents.

She presented claims for both unlawful discrimination on the grounds of her sex and/or pregnancy – and in connection with the refusal of maternity leave. She continued with her claims despite her employer in the end offering maternity leave, on the basis of their initial refusal.

In another case in Ireland, considered by the Grand Chamber simultaneously, (“Z v A Government Department & Ors”), a teacher who suffers from the rare condition of having no uterus, had arranged with her husband for a surrogate mother in California to give birth to their genetic child. Again, Z’s request for paid leave was refused by her employer and she brought complaints of discrimination before the Equality Tribunal on the grounds of her sex, family status and disability. Both tribunals referred similar questions for determination: the CJEU was asked whether it was a breach of EU law for the commissioning mother in a surrogacy arrangement to be refused paid maternity leave and, furthermore, whether such a refusal amounts to sex discrimination.

Two advocates general of the CJEU gave opposing, directly contradictory opinions. In the UK case, Advocate General Kokott took the view that the refusals amounted to a breach of the EU Pregnant Workers Directive. He observed the relevant legislation was introduced in 1992, at a time when biological motherhood was the norm and the practice of surrogacy relatively rare.

In the Irish case, Advocate General Wahl considered that the aim of the Directive was to safeguard the “fragile physical state” of those women who have actually given birth.

The opposing opinions of the respective advocates general caused considerable confusion and the decision of the Grand Chamber was eagerly anticipated.

The CJEU offered an interesting, and in some ways curious, rationale. It preferred the logic of Wahl in finding that the refusal of maternity leave to commissioning mothers in these circumstances neither amounts to a breach of the entitlement to maternity leave under the Pregnant Workers Directive nor to sex discrimination. Whilst the Court recognised the “dual purpose” of maternity leave, it noted the preservation of the “special relationship” between a woman and her child concerns only the period “after pregnancy and childbirth”.

In other words, that special relationship is only entitled to protection under EU laws in cases where the applicant for maternity leave has been pregnant and has given birth to the child. That is the case, even where the commissioning mother breastfeeds the baby.

In terms of the sex discrimination complaint, the Court agreed that as commissioning fathers would be in the same position, no discrimination arose.

There is therefore no obligation upon member states to introduce legislation placing commissioning mothers in surrogacy situations on an equal footing with mothers who in fact give birth. The court did stress, however, that it is open to member states to extend domestic laws in order to do so.

It is anticipated that the UK government will introduce changes imminently through forthcoming legislation in the course of 2015, placing surrogate parents on an equal footing with either adoptive or natural parents insofar as maternity rights are concerned.

• John Lee is an associate and employment law specialist with DWF. www.dwf.co.uk