Newspaper article The Journal (Newcastle, England)

European Judges Rule against Surrogate Mum

Newspaper article The Journal (Newcastle, England)

European Judges Rule against Surrogate Mum

Article excerpt

Byline: Katie Davies Chief Reporter

AWOMAN who had her baby using a surrogate mother has lost a European Court of Justice battle to be granted maternity leave.

The North East woman was refused paid time off after her baby was born through a surrogacy arrangement - even though she was breastfeeding the newborn child within an hour of its birth. She claimed she had been discriminated against by her employer, an NHS Foundation trust.

After losing an employment tribunal in Newcastle, the mother took her case to the highest court in Europe.

But, in a case which sets a precedent for the whole of the EU, judges in Luxembourg ruled member states did not have to provide maternity leave to women who had not given birth.

The employer's refusal to provide maternity leave in such a case "does not constitute discrimination on grounds of sex", it said.

The European Court of Justice ruling comes just months before a new law - the Children and Families Act - enshrines maternity leave for British women who have babies via a surrogate. That law will come into play next year, changing the playing field for other mothers.

The court heard how the woman, known only as Ms D, had been told by her employers that if she was proceeding with adoption she would be entitled to paid leave but, if not, there was "no legal right to paid time off for surrogacy".

She had taken her case to a tribunal in Newcastle, claiming discrimination on grounds of sex and/or pregnancy and maternity under the Equality Act 2010. The tribunal ruled in 2011 that she was not entitled to maternity pay because that right rests with the child's birth mother.

The baby was born in August 2011 and within an hour of the birth, the woman began to mother and breastfeed the child. She breastfed for three months.

The court said the EU's pregnant workers directive was designed only to help workers who had recently given birth, but added that member states were "free to apply more favourable rules for the benefit of commissioning mothers. …

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