Should the non-biological parent of a child born by a surrogate mother be entitled to maternity leave?
In our previous update we reported that Surrogacy UK and a mother have lodged a joint claim at the High Court, seeking a declaration that the absence of maternity leave rights for mothers of children born by surrogates is unfair. Notably the issue of whether the non-biological parent of a child born by a surrogate mother is, or should be, entitled to maternity leave was also referred to the European Court of Justice (ECJ) earlier this year by an Employment Tribunal. An ECJ judgment is still pending and Just Employment Law will continue to keep you updated on any developments.
However, this issue serves as a reminder to employers that the law may not always provide guidance on how to deal with issues that arise during the employment relationship. Such issues may instead require employers to engage directly with employees to reach mutually acceptable solutions, particularly if the alternative is to engage in costly litigation to resolve the matter.
In addition, in the absence of clarification on a particular issue, employers should be mindful of how other areas of law could have an impact on their decision. For example, if a woman uses a surrogate because of a disability and is not allowed to exercise maternity leave in the same manner as a non-disabled employee, she could attempt to claim disability discrimination. Employers are therefore advised to take legal advice early when faced with such ‘grey areas.’
(The case that has been referred to the ECJ is: C-D v S-T ET/2505033/11)