Is a mother to be, under a surrogacy arrangement, entitled to paid maternity leave?

CD v ST [2014] and Z v A Government Department and the Board of Management of a Community School [2014]

These cases involved two women who were party to a surrogacy arrangement. The women were to receive the child under the surrogacy arrangement (known as the Commissioning Mother) and at no time were they pregnant themselves. Each had applied to their respective employers for paid maternity leave to care for the child after it was born and their employer refused.

Both claimed they were entitled to take maternity leave and brought claims for sex discrimination.

Z had no uterus and was unable to support a pregnancy. Z claimed she was a disabled person and she had been discriminated against.

The CJEC in these two cases decided that:

1. Commissioning Mothers, who were at no time pregnant, under a surrogacy arrangement did not have the right to maternity leave. In reaching its decision it took into account the primary purpose of maternity leave – ‘to protect the health and safety of the mother of the child in the … vulnerable situation arising from her pregnancy’.
2. an employer who refuses a Commissioning Mother maternity leave does not discriminate against her on the basis of her sex. The court considered that a commissioning father is treated in the same way so it could not be direct sex discrimination (i.e. because of the woman’s sex). It also concluded that there was nothing ‘in the file’ to suggest that refusing maternity leave put female workers at a disadvantage and therefore was not indirectly discriminatory.
3. Z’s condition, whilst understandably a source of suffering to her, did not affect her ability to ‘exercise … her professional activity’ (referring to the words of the European Directive). This was translated into the Equality Act 2010 as ‘normal day to day activities’.

In practice this situation will be relatively rare, but these cases give helpful clarity to employers who find themselves faced with these questions.

An employer does not have to grant maternity leave to a Commissioning Mother but it can do so voluntarily.  It will also not directly discriminate on grounds of sex if it refuses.

Employers should, however, be cautious about the court’s conclusions that there was no indirect sex discrimination or disability discrimination. Both conclusions were reached on the available information and facts.  We can envisage a number of situations where the reason a Commissioning Mother cannot ‘support a pregnancy’ is because they are a ‘disabled person’.

It is also worth mentioning that the law may change in the future. The Children and Families Act 2014 gives the Secretary of State the power to make regulations to provide for Commissioning Mothers to receive maternity/adoption leave. We will keep you updated if the law does change.