Surrogacy leave and pay – a loophole in the law?
On 17 April 2012, a Private Member’s bill was presented to the UK Parliament seeking to introduce leave, pay and allowances for parents of children born to surrogate mothers equal to those enjoyed by non-surrogate parents.
The introduction of this Bill follows on from the decision of the Newcastle employment tribunal in the case of C-D v S-T earlier this year. In this case, the Claimant, a mother by way of surrogacy, was refused leave under her employer’s adoption policy and was instead provided with the option of taking a career break, annual leave or unpaid leave. At tribunal, the Claimant argued that the EU Directives on pregnancy and equal treatment provide protection for female workers who become new mothers and UK law should be interpreted purposively to provide equal protection for mothers by way of surrogacy.
The tribunal referred the matter to the ECJ in order to determine whether under EU law, a woman who becomes a mother through surrogacy should be entitled to paid maternity leave.
It remains to be seen whether the UK Parliament will await the ECJ’s opinion before progressing the Bill to the next stage. To keep track of the Bill through Parliament follow this link.