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25th October, 2013

Maternity Rights

A father is not entitled to maternity leave where his partner and mother of his child is self-employed.

The case of Betriu Montull v Instituto Nacional de la Seguridad Social (INSS) C-5/12 considered the system of shared parental leave. Mr Betriu Montull applied for 10 weeks maternity leave (as allowed under Spanish law) following the birth of his son. He was entitled to such leave as he was an employee and covered by the Spanish Social Security System. However, Mr Betriu Montull was refused the maternity leave as the mother of his son was self-employed. The ECJ held that the primary right to paid maternity leave belongs to the mother; the father has no independent right to it. In the present case, a self-employed woman did not enjoy any primary right to maternity leave, and as such she had no right to grant leave to the father of the child.

An intended mother in a surrogacy arrangement is entitled to maternity leave said Advocate General Kokott in C-D v S-T.

In the case of C-D v S-T C-167/12 (Advocate General’s Opinion), C-D was employed when she became a mother under a surrogacy agreement. Her partner was the biological father of the child but she was not the biological mother. Her employer refused to grant her maternity or adoption leave and instead offered support through a career break, unpaid paid, annual leave and reduced hours. C-D brought a claim to the Employment Tribunal that she had been subjected to a detriment contrary to section 47C of the Employment Rights Act 1996 in respect of her maternity leave request and discriminated against contrary to sections 13 and 18 of the Equality Act 2010 because of her sex and pregnancy/maternity.

This case has been referred to the ECJ and Advocate General Kokott proposes that in making their decision, the ECJ considers to following:

• An intended mother who takes responsibility for a baby via a surrogacy arrangement has the right to receive maternity leave under the Pregnant Workers Directive (“PWD”), whether or not she will breastfeed the child.

• An intended mother’s maternity leave must amount to at least two weeks. However, any maternity leave taken by the surrogate mother (apart from her first two weeks) must be deducted from the intended mother’s 14-week entitlement under the PWD.

There was no discrimination contrary to EU law in this case. C-D had not been subjected to a detriment by reason of sex, pregnancy or maternity leave.

The opposing opinion of Advocate General Wahl in Z said an intended mother was not entitled to maternity leave nor discriminated against.

Advocate General Wahl gave his opinion in another case involving surrogacy, Z v A Government Department and the Board of Management of a Community School C-363/12. This opinion was largely about discrimination. In this regard, the Advocate General took the view that an intended mother’s complaints that her employer’s refusal to grant her maternity leave did not amount to sex or disability discrimination under EU law. Notably, however, the Advocate General made some comments about the PWD that seem to contradict the view of Advocate General Kokott in the above case.

He emphasised that:

• The health and safety protection provided by the PWD is intended for women who give birth to a child. The right to maternity leave is defined as a period of “at least 14 weeks, allocated before and/or after confinement”. The aim is to protect the woman during a period when she is particularly vulnerable both before and after confinement.

• The ECJ has attached importance to the special relationship that develops after birth between a woman and her child. However, that objective can only be understood in context “as a logical corollary of childbirth (and breastfeeding)”.

• Because of the clearly enunciated objective of protecting the health and safety of workers in a vulnerable condition, the PWD should not be read as protecting a right to maternity leave for an intended mother who has had her genetic child via a surrogacy arrangement.

“We will therefore await the decisions in both cases and the impact they may have on future rights to maternity leave.”

These are Advocate General’s opinions and therefore are not binding on the courts. We will await the ECJ’s decisions as to which opinion they prefer and the effect this may have on future cases.

The UK position remains for now that only the surrogate mother is entitled to maternity leave.

In the meantime, the UK position on this topic is that only surrogate mothers are entitled to maternity leave. It will be for the ECJ to decide whether it prefers the opinion in C-D or that in Z, or indeed whether it thinks a third approach is correct, therefore the UK position may change accordingly.

For more information on implementing an effective maternity policy in your workplace or advice on best practice to be followed, please contact Claire Brook on 01244 405575 or send an email to [email protected]


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