Whether surrogacy entitles mothers to maternity leave has long been a challenging and emotional question in employment law. A recent Court of Justice of the European Union (CJEU) ruling offers clarity—though the decision may disappoint many intended parents. The UK takes a different approach to surrogacy rights. Discover the key differences now.
The CJEU Ruling Explained
The case centred on a woman known as CD, whose child was born via a surrogacy arrangement. Although she was neither the birth mother nor the biological mother, she and her partner were recognised as the legal parents. In fact, CD began breastfeeding her baby within an hour of its birth.
When her employer refused to grant her either maternity leave or adoption leave, CD challenged the decision. The Employment Tribunal referred the case to the CJEU, which ruled:
- No Pregnancy, No Maternity Leave – Under the Pregnant Workers Directive, maternity leave applies only to women who have been pregnant. As CD had not carried the child, she did not qualify.
- No Discrimination Found – The court found no unlawful discrimination in the employer’s refusal.
This decision clarified a previously uncertain area of European law, which had been clouded by conflicting legal opinions.
UK Law Takes a Different Approach
While the CJEU’s stance was restrictive, UK law has since moved to support intended parents through The Children and Families Act 2014. This legislation, effective from April 2015, gives intended parents in surrogacy arrangements the right to paid leave.
Employment Relations Minister Jenny Willott described the reforms as “bringing the way new parents balance work and home lives into the 21st century,” highlighting benefits for both families and employers. While most of the Act applies to England, its paid leave provisions also extend to Scotland.
Before the Law Change
Prior to April 2015, there was no statutory right to paid leave for intended parents in surrogacy arrangements. Some employers, however, chose to include surrogacy in their internal policies voluntarily.
What This Means for Parents Considering Surrogacy
This landmark ruling shows that under European law, maternity leave is tied to pregnancy itself. However, UK law now recognises surrogacy as a valid path to parenthood and offers protection through paid leave rights.
If you’re planning a surrogacy arrangement, it’s wise to seek legal guidance early so you fully understand your rights and can make informed decisions before your child arrives.
Talk to a Surrogacy Employment Law Specialist
If you’re involved in a surrogacy arrangement and need advice on maternity, paternity, or adoption leave, our experienced employment solicitors in Glasgow and Aberdeen can help you navigate your rights with confidence.
Call 0141 433 2626 today or complete our online enquiry form to arrange a confidential consultation.
