Employment Tribunal to Refer Questions on Surrogacy to the ECJ

The Newcastle Employment Tribunal has decided to ask the European Court of Justice whether a woman who becomes a mother by way of a surrogacy arrangement should be entitled to paid maternity leave to bond with her baby, establish breastfeeding and maintain and develop her family life.

In this case the Claimant (C-D) became a mother as the result of a surrogacy agreement.  She looked after the baby from an hour old and began to breastfeed, which she continued for three months. Although her employers offered her a career break, annual leave, reduced hours and unpaid leave the Claimant argued that she had been subjected to a detriment in respect of the refusal to allow her to take maternity leave and discriminated against because of sex and/or maternity. She argued that both domestic and European law do not simply refer to gestational mothers but to women who are "new mothers" and that this applied to her. Alternatively she argued that she had been less favourably treated because of the surrogate mother’s pregnancy and she should be protected by the provisions preventing associative discrimination.　

Although the tribunal held that neither domestic nor European legislation specifically protects the Claimant, as pregnancy and maternity are protected by European law as fundamental rights it was appropriate to refer to the European Court the question of how far this protection extended.　

At the same time the Scottish Court of Session in another case, Kuikauskas v Macduff Shellfish (Scotland) Ltd, has made a reference about whether the associative discrimination provisions in the Equality Act cover a man who alleges he was dismissed due to his partner's pregnancy.