Yesterday, the Court of Justice of the European Union ruled that women who become mothers via surrogacy do not have an automatic right to maternity leave under EU law.

Going on, however, the court stressed that member states are free to provide maternity leave of their own accord.

The Court of Justice of the European Union CJEUA hospital employee in the United Kingdom and a teacher in Ireland were unable to bear children. They both had children using surrogate mothers, in line with British and Irish law. Both surrogacies were declared legal by national authorities.

EU law guarantees minimum protection standards at work to women who are pregnant, were pregnant, or are breastfeeding. It also allows, but does not insist that member states to provide leave to workers who adopt children.

However, in yesterday’s preliminary ruling, the EU Court of Justice established that neither mother was pregnant, nor legally adopted the children since the parenthood was already established at birth.

The court also ruled that there was no discrimination on the ground of sex, which is also forbidden under EU law.

Commenting the ruling, Raül Romeva i Rueda MEP, Vice-President of the Intergroup on LGBT Rights and member of the Employment Committee, said: “The court is technically right, since neither woman was pregnant or adopted her child. EU law is clear that minimum standards of protection apply to those women only.

“But yesterday’s ruling points to a clear gap in EU law, especially for those parents who do not conform to traditional family models. We’ll have to bear this in mind when next discussing employment and maternity laws.”

Sirpa Pietikäinen MEP, Vice-President of the LGBT Intergroup and member of the Committee on Women’s Rights, added: “Women’s rights are not up for discussion. Regardless of national laws on surrogacy, if these surrogacies took place legally, Great Britain and Ireland should ensure that a new mother can spend time with her child. This is common sense, but not common law yet. We ought to work in that direction.”