Two Decisions Affect Intended Parents’ Right to Maternity Leave

The European Court of Justice (ECJ) for the European Union has ruled that Intended Mothers relying upon a surrogate may not be entitled to maternity leave. This ruling is a response to two cases where the Intended Mothers, one from the UK and the other from Ireland, were denied maternity leave. (See article of Irish genetic mother here)

The ECJ (See judgment) based its decision on three key points: 1) Maternity leave is given under the supposition that the person seeking it was pregnant and gave birth and therefore it does not apply to Intended Mothers, even if the Intended Mother is genetically related and/or breastfeeding the baby; 2) Refusing maternity leave is not discriminatory on the grounds of sex since an Intended Father is not entitled to it either; and lastly, 3) Refusing maternity leave does not infringe upon a person’s right under the Employment Equality Framework Directive since the inability to bear one’s own child is not a “disability” as it pertains to the workplace and the directive.

The ECJ did mention that the EU sets a minimum standard here and that the member states can apply more favorable rules for Intended Mothers if they wish.

Interestingly, the UK is taking legislative action regarding maternity leave for Intended Parents. Unlike the EU however, the UK’s Children and Families Bill (which will take effect starting 2015) grants Intended Parents the same rights off work to care for their children as other parents. This law puts the Intended Parents on equal footing as other parents and recognizes that all parents need that time to care for their children.

As the laws continue to catch up to technology, it will be interesting to see how these two decisions will influence the rulings to come.