Surrogacy 



Birth mothers under a surrogacy arrangement are protected from sex, pregnancy and maternity discrimination and 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. In two important cases involving surrogate mothers from the UK, the ECJ ruled that the EU Pregnancy Directive does not extend to women who do not give birth, even if they breastfeed straight after birth (CD v ST [2014] IRLR 551 CJEU, Z v A Government Department C-363/12). 



However, EU law provides only a floor of minimum rights, not a ceiling and in this case, the rights of qualifying surrogate parents in the UK were improved under the Children and Families Act 2014 which introduced new rights to time off, adoption leave and pay, affecting babies born on or after 5 April 2015. For more information see Chapter 9.



Same sex partners are entitled to the same leave and pay rights as opposite sex couples having a child through surrogacy. It would be sexual orientation discrimination to treat them less favourably.


Unions led the campaign for proper rights for surrogate parents. The case of CD v ST (above) was supported by public services union UNISON.