Surrogacy and right to maternity leave.
Is it right that women who become mothers by having a baby born by a surrogate are not entitled to protection afforded to new mothers? The Government this month confirmed that it is considering a private members’ bill that has been introduced to deal with this increasingly common occurrence following a reference to the ECJ by a Tribunal.
Over recent years, the scope of protection for parents has expanded dramatically and now the question of surrogacy is coming to the fore. At the current time, women who become mothers using surrogates do not have any rights to maternity leave or pay as they do not fulfil the statutory definitions, both under domestic and EU law.
Back in February this year, an employment tribunal rejected claims for discrimination and detriment by a claimant who had a baby via surrogacy but who was told by her employer that she had no maternity rights. The Claimant had started breastfeeding her baby from within an hour of the baby’s birth and for the next three months. Her employer initially refused to allow her maternity leave but instead tried to work around it by offering a range of ways to have time off such as a career break, annual leave and unpaid leave. The Claimant argued that, as a new mother, she was entitled to protection European directives, and that she was in the same position as a natural birth mother.
However the Tribunal rightly referred this question to the ECJ but a decision has not yet been reached.
So, we will have to wait for the outcome of the ECJ case and the private member’s bill. We wonder which will land first but our money is on the Government waiting to see what Europe has to say on the matter.
Created 31st July 2012
Created 31st July 2012