No maternity leave for surrogacy mothers under EU law

A controversial ruling by the European Court of Justice says that women who use a surrogate to have a baby are not entitled to maternity leave.

These days, people become parents through a number of different methods but for women who receive a baby from a surrogate in Europe, there’s no legal entitlement to paid maternity leave.

The European Court of Justice ruled on two surrogacy cases, brought by a British health service worker and an Irish teacher, and determined that the EU’s pregnant workers directive was only designed to help workers who had recently given birth.

“EU law does not require that a mother who has had a baby through a surrogacy agreement should be entitled to maternity leave or its equivalent. The pregnant workers directive merely lays down certain minimum requirements in respect of protection,” said the court.

However, member states are allowed to apply their own rules for mothers whose children are born via surrogates.

Employment lawyer Vanessa Hogan of Hogan Lovell told The Guardian that advances in medical technology in recent years have made surrogacy arrangements more common.

“These decisions show that laws that were drafted two decades ago do not cater for such advances.”

Leave entitlements for commissioning parents:

The commissioning mother is entitled to parental leave, which can be partially paid if they meet the criteria, but not maternity leave. The surrogate who gives birth to the child is entitled to paid maternity leave.

United Kingdom
The Children and Families Act, which will be introduced next year, will give mothers who raise children from surrogacy arrangements the right to paid leave.  

United States
There is no legal entitlement to paid maternity leave in the United States, but women who receive babies through surrogacy are entitled to up to 12 weeks of unpaid leave under the Family and Medical Leave Act of 1993. 

If the surrogacy agreement involves the commissioning mother adopting the baby, she would be eligible for paid parental leave as the primary carer of a newborn or recently adopted child, but would still have to meet the income criteria and work test required for paid leave.

New Zealand
Under New Zealand law, the surrogate mother is the legal mother of the child and commissioning parents must adopt the child. Adoptive mothers are entitled to paid maternity leave of up to 14 weeks if the child is under the age of six and they meet the employment criteria.

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