Further to my earlier posts, we now have a ruling from the European Court of Justice on this issue. The ECJ has held that a commissioning mother (who receives a child via a surrogacy) does not have the right to maternity leave under the Pregnant Workers Directive. The aim of the Directive is to protect the mother’s health in the especially vulnerable situation that arises from pregnancy. This is notwithstanding the fact that the period of maternity leave is intended to assist in the bonding between mother and child. This is also regardless of whether the mother intends to breastfeed.
The ECJ also held that it is not sex discrimination under the Equal Treatment Framework Directive for an employer to deny a commissioning mother paid maternity leave. There is no less favourable treatment because of sex as a male commissioning surrogate would be treated the same way. It also did not amount to disability discrimination under the Directive for an employer to refuse to grant paid leave to a commissioning mother who did not have a uterus, meaning that she could not support a pregnancy. Her medical condition did not amount to a disability under the directive as she could still lead a full and effective professional life.
The decision follows that of the Attorney General who gave their opinion on the matter but will never the less be a blow to women who become mothers in this way.