Surrogacy Mother’s Legal Challenge To Set President

The mother of a baby born through surrogacy has taken her case to the European Court of Justice (ECJ) after to fight for the right to paid maternity leave.

The mother, who is to remain anonymous, was refused maternity leave, offered a career break, reduced hours and unpaid leave by her employer, a move, which she felt was sex and maternity discrimination.  She decided to take the case to an employment tribunal, who in turn decided that the issue had to be decided by the ECJ.

The case is to test whether UK laws comply with European Union directives, and could pave the way for women in the same situation to enjoy the same rights as women who either gave birth or who adopted.

John Read, an employment law expert at XpertHR, a human resources website, said: “Under UK law, mothers who have a baby via a surrogate mother and assume responsibility for it under a parental order are not entitled to the same rights and protection, for example regarding discrimination, as mothers who give birth or adopt.

“It’s unclear whether the EU legislation from which these rights derive covers surrogate mothers, and the tribunal will ask the ECJ to clarify this. If the ECJ decides that surrogate mothers are covered, our courts will need to interpret UK law to give effect to this, until Parliament amends the legislation.

“It is extremely unusual for a tribunal to make a referral to the ECJ, but the tribunal found no case law to help it determine the issue.”

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