04 October 2013

Advocate General of the European Court of Justice (ECJ) Juliane Kokott has agreed with a case brought by public sector union Unison stating that the intended mothers of children born through surrogacy should receive the same maternity rights as women who are able to give birth to their own children.

Kokott has recommended that intended mothers should be protected the same way as all mothers are under European law and her opinion will be taken into account by the ECJ in making its decision on whether or not to take such a move.

The issue was raised when Unison brought the case of a woman in Newcastle-upon-Tyne whose child was born through a surrogacy arrangement in August 2011. The intended mother – referred to as CD – claimed for sex discrimination at an Employment Tribunal when she was not afforded the time to bond with and care for her newborn, as other mothers are.

CD's solicitor and Legal Officer for Unison, Kate Ewing – who has authored an exclusive briefing for the Institute of Employment Rights on this case – explained the wide-ranging significance of the ECJ's decision.

"This is an important case which addresses a gap in the law which currently leaves a number of new mothers in the UK without equal rights when their babies are born.

"The case has the potential to have repercussions not only for women in the UK but also across Europe."

Having been directly referred to the ECJ by the Tribunal, the Grand Chamber of the Court of Justice of the European Union heard the case on 19 March 2013 in Luxembourg. The Court will now clarify whether CD is covered by the maternity rights afforded women under European Law. After this has been decided, the case will be referred back to the Employment Tribunal.

"Our member is a hard-working midwife-sonographer, who like any mother wanted the best for her baby," Sharon Greene, Unison National Women's Officer, said.

"In her case she immediately began mothering and breastfeeding her baby at birth and so like any other mother she should have been entitled to equal maternity rights and a period of maternity leave to be able to bond with and care for her baby," Greene added.