Mother who had child via surrogacy arrangement not entitled to paid maternity leave under European law

The ECJ has ruled that it was not a breach of EU law to deny a commissioning mother, who had a child via surrogacy, paid maternity leave and adoption leave despite the fact that she had been breastfeeding the child since birth.


The Claimant, D, and her partner entered into a surrogacy arrangement by which they had a baby. Within an hour of the baby’s birth D began mothering and breastfeeding the child and the couple were subsequently granted a parental order.

D was later denied paid maternity and adoption leave by her employer as she did not adopt or give birth to the child.  She subsequently issued a claim in the employment tribunal claiming discrimination on the grounds of sex and / or pregnancy and that the maternity leave provisions of the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999 had been infringed.

The tribunal made a preliminary reference to Advocate-General Kokott who suggested that it should find that a commissioning mother has the right to paid maternity leave under the Pregnant Workers Directive, even where she is not breastfeeding.

ECJ decision

The ECJ, however, held that the protection granted by the Directive assumes that the mother was pregnant and has given birth to the child and therefore the claimant was not protected.

In doing so it noted that workers who are pregnant and have recently given birth, or who are breastfeeding, are in a vulnerable situation which makes it necessary for the right to paid maternity leave to be granted to them. Previous cases held that maternity leave was also intended to protect the special relationship between a woman and her child however the ECJ  noted that this objective is only concerned with the period after pregnancy and childbirth. Therefore the protection afforded by the Directive presupposes that the mother has given birth to the child. In D’s case she was never pregnant, so cannot benefit from the protection.

However, the ECJ stated that member states can grant provisions more favourable to mothers who have children via surrogacy if they chose to do so.  Further, the ECJ held that the employer’s refusal to grant paid maternity leave was not direct sex discrimination because a father in the same situation would also not be entitled to the paid equivalent to maternity leave.

The ECJ also went on to state that the refusal to grant paid maternity leave did not amount to indirect sex discrimination because there was no evidence to show that this refusal would put women workers at a particular disadvantage as compared to male workers. Further there was no less favourable treatment related to pregnancy or maternity because a mother who has had a child via surrogacy was never pregnant and so cannot be subject to less favourable treatment related to her pregnancy.


With developments in medical science more and more people are having children via surrogacy arrangements and therefore the decision may seem somewhat out of touch with the times. However, as stated by the Court, there is nothing to stop member states granting more favourable treatment to women who have children via a surrogacy arrangement. Indeed, under the Children and Families Act, from April next year British mothers who raise children via surrogacy will be given the right to paid adoption leave if they apply or intend to apply for a parental order

For more information, please contact the Employment Team

This entry was posted in Devonshires, employment, employment law, UK employment and tagged , , , . Bookmark the permalink.

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