Many UK employers have developed policies that cover surrogate parenthood, on the basis that it is equitable to treat parents of babies in the same way, regardless of how they have become parents.
But the law at the moment (both in Europe and in the UK) lags behind what happens in practice; it doesn’t reflect current social trends; and it leaves many surrogate parents technically disadvantaged.
Inevitably the law will catch up (and may overtake) society (as it has done in the past by reference to issues such as sexual orientation and same-sex marriage).
In the meantime many UK employers may continue to lead from the front and treat commissioning mothers (i.e. a mother who receives a child via a surrogacy arrangement) and their partners in the same way as if the child had been born following the commissioning mother’s actual pregnancy.
There are good industrial relations and employee engagement reasons for doing this.
As to the legal position: the European Court of Justice (the “ECJ“) has shown in the UK case of CD v. ST and in the Irish case of Z v. a Government Department and the Board of Management of a Community School thatthe EU approach differs from what happens in practice in the UK.
In those cases it was held that:
- A commissioning mother does not have the right to maternity leave under the Pregnant Workers Directive. The reasons are that the Directive’s aims are to protect the health of the mother, and to ensure the special relationship between a child and the mother who actually gives birth.
- A commissioning mother will not suffer less favourable treatment and so will not suffer sex discrimination under the Equal Treatment Directive if she is denied paid maternity leave. The reason is that the employer would have treated a male parent of a child born via surrogacy in the same way by not granting him paid leave either.
- A commissioning mother who is physically not able to have a child (due to not having a uterus) will not suffer less favourable treatment and will not suffer disability discrimination under the Equal Treatment Framework Directive. The reason is that she was not prevented from leading an active professional life.