No Maternity Leave for Women/surrogacy/ for Now

The European Court of Justice declared on the 18^th February 2014 that  women who become mothers through surrogacy cannot claim maternity leave. The declaration was made in the case of a woman refused paid maternity leave by her employer after the birth of her baby through a surrogacy arrangement.

It was held that an employer’s refusal to provide maternity leave in such a case “does not constitute discrimination on grounds of sex”

The woman involved had taken her case to a tribunal in Newcastle upon Tyne, claiming discrimination on grounds of sex and/or pregnancy and maternity under the Equality Act 2010. The tribunal ruled in 2011 that she was not entitled to maternity pay because that right rests with the child’s birth mother.

This decision does tend to go against the general principle that mothers should have the opportunity to bond with their babies and therefore be given time off work paid by their employers. However from April 2015 the law in Britain is set to change to enable people intending to become parents via surrogacy to claim paid leave.

Please contact Daven Naghen, Head of our Employment Team on 01775 722261 or by email on daven.naghen@maplessolicitors.com for information on any Employment related matters.