Mums through surrogacy not entitled to maternity leave under EU law

Yesterday, the Court of Justice of the European Union ruled that women who become mothers via surrogacy do not have an automatic right to maternity leave under EU law. Going on, however, the court stressed that member states are free to provide maternity leave of their own accord. The Court of Justice of the European Union CJEUA hospital employee in the United Kingdom and a teacher in Ireland were unable to bear children. They both had children using surrogate mothers, in line with British and Irish law. Both surrogacies were declared legal by national authorities. EU law guarantees minimum protection standards at work to women who are pregnant, were pregnant, or are breastfeeding. It also allows, but does not insist that member states to provide leave to workers who adopt children. However, in yesterday’s preliminary ruling, the EU Court of Justice established that neither mother was pregnant, nor legally adopted the children since the parenthood was already established at birth. The court also ruled that there was no discrimination on the ground of sex, which is also forbidden under EU law. Commenting the ruling, Raül Romeva i Rueda MEP, Vice-President of the Intergroup on LGBT Rights and member of the Employment Committee, said: “The court is technically right, since neither woman was pregnant or adopted her child. EU law is clear that minimum standards of protection apply to those women only. “But yesterday’s ruling points to a clear gap in EU law, especially for those parents who do not conform to traditional family models. We’ll have to bear this in mind when next discussing employment and maternity laws.” Sirpa Pietikäinen MEP, Vice-President of the LGBT Intergroup and member of the Committee on Women’s Rights, added: “Women’s rights are not up for discussion. Regardless of national laws on surrogacy, if these surrogacies took place legally, Great Britain and Ireland should ensure that a new mother can spend time with her child. This is common sense, but not common law yet. We ought to work in that direction.” Article: 19th March 2014 www.pinknews.co.uk

High court challenge to change maternity leave rights for surrogacy families

A joint claim has been lodged at the High Court challenging the lack of maternity leave rights for families through surrogacy. Surrogacy UK and a mother directly affected are together seeking a declaration from the High Court that the current law is unfair. The issue is that UK parents who have a child with the help of a surrogate mother do not have rights to time off work to care for their new child, while parents who give birth or who adopt do. As a result, the mother bringing the claim (known only as RKA) was denied maternity leave rights by her employer to care for her newborn child, and was then made redundant while on unpaid leave. Surrogacy UK, which has brought the claim together with her in its capacity as a leading representative of many UK families, says: “We’ve made this claim as the leading surrogacy organisation in the UK, reflecting our responsibility to promote and protect the interests of our members and all others involved in surrogacy. Put simply, there can be no reason to treat parents of children born via surrogacy any differently from any other parent looking after a new-born. The Government has a responsibility to ensure that all parents have rights to a family life and the best possible start for their child.” Merry Varney from law firm Leigh Day & Co, who is representing RKA and Surrogacy UK, says: “The Government has a positive obligation under Article 8 of the Human Rights Act to protect surrogate parents to ensure respect for their private and family life and a positive obligation under Article 14 to avoid discrimination.” The anomaly which denies maternity leave was raised in Parliament earlier this year, when John Healey MP called for equal maternity leave rights for mothers through surrogacy. His constituent Jane Kassim had also been denied maternity leave after her cousin Amy carried her and husband’s twins (read more about what he said here). With the Department of Business Innovation and Skills currently reviewing the law on maternity rights, there is an opportunity to address the problem. While surrogacy was historically a rare phenomenon which only affected a tiny handful of families, that is no longer the case. The numbers of parental orders (the orders which make parents through surrogacy the legal parents) stood at 138 last year, up from 58 just two years ago. We at Natalie Gamble Associates have been campaigning to end discrimination against surrogate families for many years. As well as the employment law issues, other problems arise from the fact that it takes so long (often up to a year after the birth) for the parents to win legal recognition. There can be problems with medical consent, not to mention severe difficulties over immigration where children are born through surrogacy abroad. There is also no proper regulation of surrogacy services in the UK, while surrogacy thrives as an industry in many places abroad, driving more and more parents to go abroad. Surrogacy law in the UK desperately needs updating and we hope dealing with the employment discrimination will be just the first step.

Mother who had a baby through surrogacy challenges legal right to maternity leave

A mother who had a baby through a surrogate has launched landmark legal action for the right to paid maternity leave
Her employer refused to give her maternity leave, so she went to an employment tribunal. The woman, who has been allowed to remain anonymous by judges, was refused the leave by her employer when she became a mother. She is suing her employer, alleging sex and maternity discrimination, and has taken her case to the European Court of Justice (ECJ) to decide whether the British laws comply with European Union directives, which could force a change in the rules. The court is expected to make a decision later this year.

An estimated 70 women became mothers through surrogates last year and campaigners say they deserve the same rights as other women. Natalie Gamble, an expert in fertility law, said that only mothers who were pregnant or those who have adopted are entitled to take maternity leave under the existing rules, which left “a gap” in cases where mothers used surrogates. Stuart Walne, a spokesman for Surrogacy UK, a support organisation, said the rules created an added “trauma” for these women, who faced disputes over paid leave.

The woman started working as a midwife sonographer for her employer in July 2001. Her baby was born through a surrogate mother in August last year and the woman began breastfeeding the child soon after the birth, something that can be induced through hormone treatments and drugs. Her employer offered a career break, reduced hours and unpaid leave, but refused to give her maternity leave, so she went to an employment tribunal. It ruled that the issue had to be decided by the ECJ.

A spokesman for the Department for Business, Innovation and Skills said that there were no plans to change the law regarding people who have a child through surrogacy.

Natalie Gamble has stated 'We hope the case will make a significant difference, although it is unlikely to do so for some time'. Read more about surrogacy law at www.prideangel.com