Maternity leave is a simple concept but in practice can often be complex. Two recent decisions from the ECJ have provided some clarity on some of the more complex aspects of the legal right to maternity leave.
On Friday the ECJ held in the Spanish case of Betriu Montull v Instituto Nacional de la Seguridad Social (INSS) that EU law did not prohibit a system of shared maternity leave provided that the mother takes the minimum period of compulsory maternity leave. After that compulsory period she is able, subject to the legislation in each Member State, to share the remaining leave and benefits with the child's father. However, the ECJ went on to uphold a Spanish law which precluded a father taking a period of shared maternity / parental leave where the mother of the child was self employed and not an employee.
Followers of our Blog will be aware that the Government is intending to introduce shared parental leave in 2015 allowing mothers to share 50 weeks of maternity leave and 37 weeks of pay with the father of the child (please click here to read a summary of the proposals). It will be interesting to see how the UK Government approach this issue because presently self employed women in the UK do not have the right to maternity leave. If the right to shared leave is to be derived from the mother's statutory entitlement then the fathers of children whose mothers have no right to maternity leave will not be able to take advantage of the benefits of the Government's proposed shared maternity / parental leave.
Today the ECJ issued an Advocate General's Opinion (the non binding stage before the full Hearing) in the case of C.D. v S.T., a referral from the Newcastle Employment Tribunal about the rights of women who have a child through a surrogate to take maternity leave. Whilst medical science has advanced in relation to IVF and surrogacy, the law in the EU and UK has not kept up which can throw up complex questions to which there may not be a straightforward answer.
The Advocate General's Opinion is that a woman who has a child through a surrogate mother has the right to maternity leave under EU law where she takes the child into her care following birth; surrogacy is permitted in the Member State concerned and its national requirements are satisfied. However, the maternity leave which the surrogate mother has taken has to be deducted from the intended mother's maternity leave entitlement, provided that both the surrogate and intended mother each take at least two weeks' compulsory maternity leave.