Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary
Is an intended mother in a surrogacy arrangement entitled to maternity leave?
Yes, according to the opinion of Advocate-General Kokott in Case C‑167/12 – CD v ST.
The Claimant and her partner had a child via a surrogate mother. The Claimant started mothering and breastfeeding the child within an hour of the birth. The couple were granted a parental order. The Claimant lodged a claim with the employment tribunal after being denied paid maternity and adoption leave by her employer on the grounds that she did not give birth to or adopt the child.
Following a preliminary reference by the Employment Judge, the Advocate-General has suggested the CJEU should find that an intended mother has the right to receive maternity leave under the Pregnant Workers Directive 92/85/EC, even when she does not breastfeed the child. Compulsory leave of at least two weeks must be granted to both mothers. However, the concept of surrogacy cannot result in a doubling of the leave entitlement under the Directive. Four weeks of mandatory leave must be deducted from the 14 week minimum. The remaining 10 weeks should be divided between the women taking into account the legally protected interests of the Directive.
The CJEU normally, but not always, follows the opinion of the Advocate-General.