Surrogacy
[ch 7: page 239]Birth mothers under a surrogacy arrangement are protected from sex, pregnancy and maternity discrimination. They are entitled to the full range of statutory maternity rights, whatever happens to the child after birth.
Only a biological mother can claim pregnancy discrimination. Women who do not give birth, such as adopting mothers under a surrogacy arrangement, cannot claim pregnancy discrimination even if they breastfeed straight after birth (CD v ST [2014] IRLR 551 CJEU, Z v A Government Department C-363/12).
In the UK, qualifying surrogate parents have specific rights under the Children and Families Act 2014. These include rights to time off, adoption leave and pay, explained in Chapter 9.
Employers must give same-sex partners the same leave and pay rights as heterosexual couples having a child through surrogacy. It would be sexual orientation discrimination to treat them less favourably.
Unions have led the campaign for proper rights for surrogate parents. The case of CD v ST (above) was supported by public services union UNISON.