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Education HR e-briefing 577: Surrogacy leave

    • Education

    11-04-2014

    In the recent cases of CD v ST and Z v A Government Department and the Board of Management of a Community School, the Court of Justice of the European Union (CJEU) clarified the EU position regarding the protections and benefits that should be afforded to mothers having children through surrogacy arrangements.
     
    Current EU law
     
    EU law sets minimum standards of protection for pregnant workers and those on maternity leave. However, it does not specifically govern the protections to be afforded to surrogate parents. Recent debate has questioned whether the Pregnant Workers Directive entitles commissioning mothers (that is, intended mothers via surrogacy arrangements) to equivalent protection and benefits, notwithstanding that they have not given birth.
     
    Current UK law
     
    There is currently no legislation in the UK to guide employers on how they should deal with surrogate parents in the workplace, though plans are afoot for that position to change (see below)
     
    It is well established that employers must provide certain protections and benefits to pregnant workers and adoptive parents, but there is no requirement to offer the equivalent to surrogate parents. In practice, many employers will choose to offer surrogate parents protections and benefits equivalent to those offered to adoptive parents, but there is no obligation on them to do so and, arguably, no certainty or consistency of treatment.
     
    CJEU decisions
     
    The two cases concerned a hospital employee in the UK and a teacher in Ireland respectively, both of whom had children using surrogate mothers as they were unable to bear children themselves. Both brought claims of discrimination in their local Tribunals, which were referred to the CJEU.
     
    The key findings of the CJEU were as follows:

    • EU law does not require a mother who has had a baby through a surrogacy arrangement to be entitled to maternity leave or its equivalent.
    • A refusal to grant paid leave to commissioning mothers did not (in those cases) amount to sex and/or disability discrimination.


    Impact in the UK
     
    The CJEU found that the primary aim of the Pregnant Workers Directive, “is to protect the health of the mother in the especially vulnerable situation arising from her pregnancy”. It acknowledged that, although maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, that objective concerns the period after “pregnancy and childbirth” only, which does not apply to a commissioning mother who has received a baby through a surrogacy arrangement.
     
    European law represents the minimum standards that UK legislation must adhere to, though of course the UK can implement legislation which goes over and above the European standards. The UK government is currently implementing legislation that offers certain protections and benefits to surrogate parents, which UK employers will of course be required to comply with. That will come into force in April 2015, but until then, there is no such requirement.
     
    With regards to the discrimination complaints, the CJEU found that, on the facts of these cases, there was no sex or disability discrimination.
     
    There was no less favourable treatment because of sex where the employer would have treated a male parent of a child born via surrogacy in the same way. So where UK employers treat both surrogate mothers and fathers consistently (by offering both no benefits or the same benefits), the risk of a direct sex discrimination claim should be low.

    With regard to indirect sex discrimination, the CJEU found that there was no evidence put forward to suggest that the refusal of maternity leave in these circumstances puts female workers at a particular disadvantage compared with male workers. However, this would not prevent workers in the UK from successfully bringing an indirect sex discrimination claim if they are able to collate evidence to support the assertion that female workers are put at a particular disadvantage by a policy of not extending maternity or adoption benefits to surrogate parents.

    The claimant in Z v A was unable to carry a child herself as she did not have a uterus. The CJEU found that this impairment did not meet the definition of a disability under the Equal Treatment Framework Directive as the impairment did not, “hinder the full and effective participation of the person concerned in professional life”. Under the relevant UK law (the Equality Act 2010), there is no such requirement. Instead, a person must have a physical or mental impairment which has a substantial and long term adverse effect on that person’s ability to carry out normal day-to-day activities. It is, therefore, possible that a person working in the UK with a similar condition could pursue a disability discrimination claim in these circumstances.

    Future developments

    With surrogacy arrangements becoming increasingly popular in the UK, it is time for the current legislative loophole to be addressed to provide both employers and workers with guidance on the entitlement of surrogate parents to protections and benefits in the workplace. The UK government is already well underway with steps to address this.

    Section 122 of the Children And Families Act 2014 (which received Royal Assent on 13 March 2014) will give the Secretary of State the power to make regulations providing for statutory adoption leave and pay to be available to employees who have applied, or intend to apply, for a parental order where the child has been born by a surrogate.
     
    It is expected that the protection afforded to surrogate parents will allow them to be entitled to shared parental leave in the same way as certain adoptive parents. Such arrangements will go well over and above the minimum standards required under EU law. However, parental orders are only available where the genetic material of at least one of the applicants was used to create the embryo, so this will still leave some surrogate parents without protection and may need revisiting. Employers will of course be entitled to offer protections and benefits over and above the minimum standards required under the Act.

    Comment

    Whilst the new “shared parental leave” provisions (which will come into force in April 2015) and the extension of protection and benefits to surrogate parents will no doubt be largely welcomed by workers, it will increase the administrative burden on education institutions who will, for example, need to amend their existing maternity, paternity and adoption leave policies to reflect the changes.

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