Currently, only biological mothers are entitled to maternity leave under the Equality Act 2010. On 26 September 2013, Advocate General Kokott’s Opinion in the case of CD v ST was published by the Court of Justice of the European Union. AG Kokott considered that intended mothers (as opposed to biological mothers) who have a baby through a surrogacy arrangement have the right to maternity leave, although maternity leave is not to be doubled but divided between intended and surrogate mothers. AG Kokott found that, pursuant to the Pregnant Workers Directive 92/85, and consistent with Articles 24(3) and 7 of the Charter of Fundamental Rights of the European Union, the purpose of maternity leave was to protect the special relationship between a woman and her child over the period following pregnancy and childbirth and that this relationship should not suffer, in the initial period, from the mother simultaneously pursuing employment. This special relationship between a woman and her child warrants protection in the case of intended mothers in the same way as it does in the case of a biological mother. Jane Russell acted as Junior Counsel for the Claimant, CD. Please click on the link below for the AG’s opinion.
