European Union law denies commissioning parents paid leave on the birth of their child

The European Court of Justice (ECJ) has ruled that parents who have a child through a surrogacy arrangement are not entitled to paid leave equivalent to either maternity leave or adoption leave in the UK (CD v ST [2014]).

The Court, which resolves disputes in relation to European Union (EU) law, were asked by an employment tribunal to rule on the case of a woman refused paid leave by her employer when her baby, conceived as a result of a surrogacy arrangement, was born.

Although the UK has provisions for both maternity and adoption leave it does not currently have arrangements for leave for the intended parents of a surrogacy arrangement. The woman's employer argued that she was not entitled to paid maternity or adoption leave as she had not been pregnant and the baby had not been adopted. The woman claimed her rights under the Pregnant Worker's Directive (Council Directive 92/85 EEC 1992) had been breached and that she had been discriminated against on the grounds of gender and disability contrary to the Equal Treatment Directive (Council Directive 2006/54/EC 2006).