Today’s decision by the European Court of Justice is a “Missed opportunity to give equal treatment to intended mothers having their babies through surrogacy arrangements” is the verdict from UNISON National Women’s Officer, Sharon Greene.
In a surprising judgment handed down today, the Court of Justice of the European Union went against the advice of its own Advocate General.
The court ruled that intended mothers whose babies are born through surrogacy arrangements are not entitled to maternity leave. The judgment crucially notes that European law sets minimum standards and that nothing precludes individual member states from granting enhanced rights and protections under domestic law.
UNISON championed the case on behalf of their member, ‘CD’, a midwife-sonographer, whose baby was born by surrogate arrangement in August 2011. The case was referred directly from the Employment Tribunal in Newcastle-upon-Tyne to the Court of Justice following a claim of sex discrimination.
The case led to the Government promoting laws allowing for Regulations to be made granting paid leave equivalent to adoption leave for eligible intended parents whose babies are born through surrogacy arrangements in the Children & Families Act 2014, passed by Parliament and given Royal Assent earlier this month.
Sharon Greene went on to say:
“We are disappointed by the decision but we are pleased that intended parents in the UK will have extra rights thanks to the pressure that UNISON has put on the Government. It is also important to note that this case led to our member being granted paid leave on a discretionary basis to care for her baby, something she would not have achieved without support from her union.
“The first few weeks of a baby’s life are critical to ensure that bonds are forged which will last for life. Giving intended parents the time they need away from the pressures of work is a crucial element of bonding.”
ends
Notes to Editors
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.
