Tribunal to ask ECJ to clarify legal protection for women who have children through a surrogate mother

C-D v S-T ET/2505033/11

Date added: 9 February 2012

surrogacy | sex and pregnancy discrimination | maternity and adoption rights

The tribunal’s reference to the European Court of Justice (ECJ) in this case could result in women who have a child through a surrogate mother being entitled to the same employment protection under EU law as conventional mothers. 

With one exception, the facts of this case are not in dispute. A tribunal order means that the parties’ names are anonymised. The claimant is a woman who is employed by the respondent as a midwife sonographer. She has worked for the respondent since July 2001. At some point prior to August 2011, the claimant entered into a surrogacy agreement under which another woman would have a child using the claimant's partner's sperm. The claimant did not provide the egg. The baby was born on 26 August 2011, and the claimant began to breastfeed the child almost immediately, and continued to do so for three months. She and her partner applied for a parental order to give them full and permanent parental responsibility for the child. 

Although the respondent has adoption and special leave policies, these do not provide for leave or pay in respect of surrogate births. In 2009, the claimant’s union had requested that the respondent include a policy on surrogate births in its special leave policy. The respondent rejected the request, stating that “on an individual basis, should the need arise, requirements would be addressed by arrangements for maternity leave or adoption”. 

Around March 2011, the claimant had made an application for paid leave under the employer's adoption policy. The respondent rejected this on the basis that her surrogacy arrangement did not meet the requirements of the adoption policy, as she could not provide a matching certificate. The respondent offered support by way of a career break, annual leave, reduced hours and unpaid leave. 

On 14 March 2011, the claimant made a formal request for surrogacy leave, arguing that it equated to adoption leave, save that she could not provide a matching certificate because she was not undergoing adoption proceedings. The respondent replied that there was no “legal right to paid time off for surrogacy”. The claimant pointed out the difference between adoption and a parental order, but her request was again rejected. On 3 June 2011, the claimant’s union representative made a further written request for the application of the adoption policy to her circumstances. At the later tribunal hearing, the claimant and respondent disputed whether or not the claimant had informed the respondent prior to this letter that she was planning to breastfeed the child. 

The union representative’s letter of 3 June stated that the respondent’s failure to apply the policy was causing the claimant “considerable distress and worry” and constituted unlawful direct sex discrimination. On 10 June 2011, the respondent said that it would exercise its “residual discretion” to allow the claimant’s request for paid leave. The claimant was granted paid leave under the adoption policy, subject to certain conditions. 

The claimant claimed sex and maternity discrimination under ss.13 and 18 of the Equality Act 2010, and a detriment in respect of her application for paid leave pursuant to s.47C of the Employment Rights Act 1996 and reg.19 of the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312). The claimant also alleged that the respondent’s actions were a breach of the European Convention on Human Rights. 

The tribunal identified the key question in the case as whether or not a mother who has a child by a surrogate mother is entitled to the benefits of the rights given to pregnant women. The tribunal and the parties were not aware of any previous case law on this issue. The claimant invited the tribunal to make a reference to the ECJ to determine the matter, arguing that neither domestic nor EU legislation explicitly deals with the situation where a woman has a baby through surrogacy. The claimant argued that her situation was analogous to that of a conventional mother, and she was entitled to protection under domestic legislation interpreted purposively and consistently with the Pregnant Workers Directive (92/85/EEC) and the Equal Opportunities and Equal Treatment Directive (2006/54/EC). 

The claimant noted that the objectives of the domestic and EU legislation are to bring about improvements in the health and safety of workers who are pregnant, new mothers or breastfeeding. The claimant is a new mother and is (or at least was) breastfeeding. The claimant argued that it is immaterial whether or not a woman is herself pregnant if discrimination occurs on the grounds of pregnancy, maternity or sex. The claimant asserted that, if the respondent’s actions were not direct discrimination, they were indirect discrimination, on the basis that the refusal of the various benefits to parents whose babies are born through surrogacy results in a disproportionate impact on women in such circumstances. 

The respondent argued that the Pregnant Workers Directive uses the term “confinement”. This does not apply to the claimant, and is a “strong indicator” that the Directive does not apply to those who have not been pregnant or given birth. The respondent noted that art.2 of the Pregnant Workers Directive sets out definitions for three types of worker entitled to various types of protection. The first two of these are a "pregnant worker" and a "worker who has recently given birth". The third, under art.2(c), is a "worker who is breastfeeding...and who informs her employer of her condition...". The Respondent submitted that the claimant must be relying on art.2(c) and argued that, "given the protection accorded through the different phases of pregnancy, it would be surprising that, just because the claimant was breastfeeding, she had the protection under the Directive". Further, the respondent argued, a worker who intends to breastfeed is not protected by the Directive and, once the claimant had informed the respondent that she was breastfeeding, it had afforded her the right to leave. 

The tribunal noted that, although it was obvious that the claimant had not been pregnant or given birth, she had breastfed her child, something specifically covered by the Pregnant Workers Directive. Contrary to the respondent’s arguments, the tribunal found that there is no “obvious and clear answer” to the key question in this case, stating that “the EU law does not provide any real guidance” on how the Directive should be interpreted and how it applies to UK law. The tribunal decided to make a reference to the ECJ. Although the tribunal noted the respondent’s argument that the legal issue “is not of wide public application” – according to the judgment, there are approximately 40 to 70 surrogate births in the UK each year – it is less expensive to make a reference at this stage, rather than deal with the issue by successive appeals, with a reference at a later stage. 

Additional resources

• Weekly dilemma: Statutory leave entitlements where a surrogate mother is used This dilemma concerns an employer who has an employee about to have a child using a surrogate mother. 
• Get more information on surrogacy in the XpertHR FAQs section:
  • Will a woman for whom a surrogate mother gives birth to a child be entitled to paid maternity leave?
  • Will a surrogate mother be entitled to paid maternity leave?