Whilst surrogacy is not permitted in the UK, this does not stop UK intended mothers from utilising the arrangement where it is permitted overseas. This raises many issues but in employment law terms it also raises issues as to the intended mother’s right to maternity leave. There have been two conflicting Advocate General decisions on the same day on this issue and the ECJ will no doubt be asked to resolve the issue in due course.
In the first case, it was said that the intended mother had a right to maternity leave under the Pregnant Workers Directive for surrogacy cases but that denial of the right would not amount to sex or pregnancy discrimination under the Equal Treatment Directive. The intended mother has not been pregnant and has no requirement to breastfeed. She had not suffered a detriment as a result of taking maternity leave and she had not suffered a detriment in comparison to male colleagues because of her sex. Maternity leave must be more than the compulsory period but surrogacy could not also result in the double taking of maternity leave by the intended mother and the surrogacy.
Yet in the second case, a different Advocate General said that the health and safety protection provided by the Pregnant Workers Directive was only intended for women who had given birth to a child and should not be read as providing maternity leave to an intended mother who had utilised surrogacy.