Discrimination and the surrogate mother: not as family friendly as you thought?

WynLewis

 

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:

  1. 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.
  2. 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.
  3. 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.

ECJ judgments are generally preceded by an Advocate General’s Opinion (essentially a “hint” for the deciding judges that brings together the issues, the law and some views).  One of these Opinions stated that a commissioning mother was entitled to maternity leave, while the other Opinion stated that she was not.  But both Opinions agreed there was no sex or disability discrimination.  So even at this stage, there was a difference in the approach to be taken.  The ECJ judgments reflect EU law and so apply in the UK, even though many employers will take a different approach in practice.

It is, however, open to EU member states to make other arrangements that derogate from certain EU legislation.  In relation to the maternity leave and sex discrimination aspects of these cases (see 1 and 2 above) this may happen soon in England and Wales.  The reason is that the Children and Families Act 2014 gives the Secretary of State the power to make regulations providing for statutory adoption leave (i.e. essentially the same as statutory maternity leave) to be available to employees who have applied, or intend to apply, for a Parental Order under the Human Fertilisation and Embryology Act 2008, by which a child will then be treated in law as the applicants’ own, if the child has been born by a surrogate, but the sexual reproduction cells of at least one of the applicants were used to create the embryo that became the child.

As to the discrimination point (see 3 above) the reference to not having “an active professional life” would not apply in the UK under the Equality Act 2010.  The reason is that any condition that amounts to a disability under the Equality Act 2010 must instead have a long term and adverse effect on someone’s ability to carry out “normal day to day activities”.  This would therefore not be triggered by an inability to have a child and so the cases would be decided in the UK as in the ECJ.

As ever, employment law issues are never far (in a good way) from the front page…!