UNISON battles for equal rights for mothers in surrogacy arrangements

UNISON, the UK’s largest union, welcomes today’s opinion of the Advocate General of the Court of Justice of the European Union as a positive step in the union’s fight for maternity rights for mothers whose babies are born through a surrogacy arrangement. The union is bringing a landmark case arguing that intended mothers* should have the same rights under European law as all other mothers in relation to maternity rights. The case CD v ST (C-167/12-1) was heard by the Grand Chamber of the Court of Justice of the European Union sitting in Luxembourg on 19 March 2013.

Advocate General Juliane Kokott today has recommended that an intended mother who has a baby through a surrogacy arrangement has the right to maternity leave under EU law.

Currently, mothers in the UK whose babies are born through a surrogacy arrangement are not entitled to maternity or adoption leave to bond with and care for their new babies.

The case has been referred directly from the Employment Tribunal in Newcastle-upon-Tyne to the Court of Justice for a Preliminary Reference following a claim of sex discrimination brought by UNISON member, CD.  

CD’s baby was born through a surrogacy arrangement in August 2011.  The role of the Court of Justice is to clarify the protections provided by European law in these circumstances. The Advocate General’s opinion is the first step in that process. The opinion is provided to assist the Court of Justice in making its decision. The full decision of the Court of Justice is now awaited. The case will then be referred back to the domestic Tribunal for determination on the facts once the law has been clarified.

UNISON national women’s officer Sharon Greene said:

“Our member is a hard working midwife-sonographer who like any mother wanted the best for her baby. She wants equal rights for mothers like her, whose babies are born through a surrogacy arrangement. In her case she immediately began mothering and breastfeeding her baby at birth and so like any other mother she should have been entitled to equal maternity rights and a period of maternity leave to be able to bond with and care for her baby.

“UNISON is proud to be supporting our member in bringing such an important case for maternity rights.”

UNISON legal officer and solicitor for CD, Kate Ewing, said:

“This is an important case which addresses a gap in the law which currently leaves a number of new mothers in the UK without equal rights when their babies are born. The case has the potential to have repercussions not only for women in the UK but also across Europe. We now await to the full judgment.”

Notes to Editor

Please note that there is a Restricted Reporting Order in place in this case which prevents the public identification of the Claimant (CD) and disclosure of her name.

* Intended Mother: a mother who has a baby through a surrogacy arrangement but has not herself been pregnant or given birth to the child in question. She begins mothering and, (if applicable) breastfeeding the child immediately at birth and assumes full and permanent parental rights following the provision of a Parental Order.

* Surrogate Mother: a woman who is pregnant and gives birth to a child on behalf of an Intended Mother. She relinquishes all rights to the child when a Parental Order is made.

* Induced lactation: the process by which a woman who has not recently given birth or given birth at all may breastfeed a baby.

* The role of the Advocate General is to advise the Court. While not binding upon the Court, Advocate General opinions are frequently followed.