At a full hearing both cases were heard together and the ECJ held that women who have a child through a surrogate mother do not have the right in EU law to either maternity or adoption leave. Despite recognising that maternity leave is to ensure that the special bond between a mother and her child is protected, the ECJ held that because the women had not been pregnant they were not entitled to maternity leave. Further, they had not been discriminated against because a man who had a child through a surrogate mother would be treated the same.
The decision goes against the trend towards greater family friendly rights in the UK. While the ECJ's decision is a setback for parents who have children through surrogacy, the Children and Families Act 2014 will extend adoption leave and pay to prospective parents going through surrogacy provided one partner is the child's biological parent from April 2015.
For further information on this and the new Shared Parental Leave Regulations please contact me or any member of the team.