European court of justice says EU law does not require maternity leave for women who use surrogate to have child.
Mothers who bring up babies born through surrogacy agreements are not entitled to maternity leave, the European court of justice (ECJ) has ruled.
The surprise decision is a setback for a British NHS worker and an Irish teacher who brought claims, but will not affect the UK government's promise of more generous terms in future.
The court said the EU's pregnant workers directive was designed only to help workers who had recently given birth, but added that members states were "free to apply more favourable rules for the benefit of commissioning mothers".
Under the Children & Families Act, from next year British mothers who raise children delivered through surrogacy arrangements will be given the right to paid leave.
The ECJ said: "EU law does not require that a mother who has had a baby through a surrogacy agreement should be entitled to maternity leave or its equivalent. The pregnant workers directive merely lays down certain minimum requirements in respect of protection."
The women who brought the challenge – Ms D, who is employed in a hospital in the UK, and Ms Z, a teacher working in Ireland – both used surrogate mothers in order to have a child.
The court said: "Ms D entered into a surrogacy agreement in accordance with UK law. The child was conceived using her partner's sperm and another woman's egg. Some months after the birth, a UK court – with the surrogate mother's consent – granted Ms D and her partner full and permanent parental responsibility for the child in accordance with UK legislation on surrogacy."
It said the Irish woman "has a rare condition which has the effect that, although she has healthy ovaries and is otherwise fertile, she has no uterus and therefore cannot support a pregnancy. Ms Z and her husband had a child as a result of an agreement with a surrogate mother in California. Genetically, the child is the couple's … Under Californian law, Ms Z and her husband are considered the baby's parents."
Both women were refused paid maternity or adoption leave on the grounds that they had never been pregnant and the children had not been adopted.
While sympathising that "a woman's inability to bear her own child may be a source of great suffering for her", the ECJ said that did not amount to "disability" within the meaning of the EU's employment equality framework directive.
Marian Bloodworth, an employment partner at Berwin Leighton Paisner, said: "The ECJ's narrow interpretation that only birth mothers get maternity leave goes counter to the prevailing trend in the UK, which is to recognise the importance of intended mothers, whether through surrogacy or adoption, to have time off from work in order to allow them to bond with their new baby or child.
"In fact, the UK government has already acknowledged the importance of this and from next April, intended parents via surrogacy will be entitled to take paid leave."
Vanessa Hogan, an employment lawyer at Hogan Lovell, said: "Advances in medical technology in recent years have made surrogacy arrangements more common. These decisions show that laws that were drafted two decades ago do not cater for such advances.
"The good news for families in this situation is that changes introduced by the Children & Families Act will make it easier in future for the intended parents in a surrogacy arrangement to access adoption leave and pay and shared parental leave and pay. It will therefore be possible for either or both intended parents to take leave around the time of a child's birth."