Surrogate Mothers and Maternity Leave

Mothers who had children by surrogacy not protected by European Union law - in the case of CD v. ST the European Court of Justice held in two similar cases that mothers who had children by way of surrogate and were denied maternity or adoption leave and pay had suffered no breach of European Union law. 

The Court decided that as they had not been pregnant themselves there was no entitlement to maternity leave. There was no sex discrimination as the commissioning mother was in the same position as a commissioning father. 

It is irrelevant whether the commissioning mother, in this case, started breast feeding within hours of the birth. 

In a connected Irish case, the mother did not have a uterus. It was not considered to be disability discrimination as the condition did not make it impossible for her to carry out her work or be a block to her professional working life.

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