Do the receiving parents of a surrogate child have any right to maternity leave?

No, according to the Court of Justice of the European Union, in a recent decision (CD V ST).

Background

The claimant and her partner had a child via a surrogate mother and took on parental responsibilities immediately after its birth, subsequently being granted a parental order.

The mother’s employer would not allow her maternity or adoption leave, and the court in Europe agreed with it.

The legal issue

Biological mothers and adoptive parents have a right to maternity/adoption leave. European legal decisions had been split as to whether surrogate parents should have rights along the lines of adoptive parents; who are entitled to the equivalent of maternity leave.

The court has finally decided that surrogate parents should not be treated in the same way as adoptive parents.

Implications for businesses

Businesses will need to keep an eye open for any changes in European or UK legislation overturning this apparently unjust result.

In the meantime, they do not strictly need to give employees who are surrogate parents maternity leave, but may wish to do so, on a discretionary basis.

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