In C. D. v S. T., Ms D. entered into a surrogacy agreement to have a baby. The sperm was provided by Ms D.’s partner but the egg was not Ms D.’s. Within an hour of the birth, Ms D. began to mother and breastfeed the child. She continued breastfeeding the child for three months. Ms D. and her partner were granted a parental order and are therefore treated in law as the parents of the child.

Ms D.’s application for paid adoption leave was refused as she  could not provide a ‘matching certificate’ issued by an adoption agency and she was told there was no legal right to paid time off for surrogacy. Ms D. claimed: (i) discrimination on the grounds of sex and/or pregnancy and maternity under the Equality Act 2010; (ii) infringement of the Employment Rights Act 1996 and The Maternity and Parental Leave etc. Regulations 1999; and (iii) that she had been subject to a detriment by reason of pregnancy and seeking to take maternity leave.

The Employment Tribunal decided to stay the proceedings and refer a number of questions to the ECJ, which principally asked whether EU law provides a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement, including where she breastfeeds following birth, and whether it is discriminatory to refuse maternity leave in such circumstances.

The ECJ ruled that: (i) Member States are not required to provide maternity leave to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement, even in circumstances where she may, or does, breastfeed the baby; and (ii) an employer’s refusal to provide maternity leave to a commissioning mother who has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex.

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