Hopefully she prevails in this case of first impression out of the United Kingdom:

A woman who had a child through a surrogate mother is pursuing a claim to the European Court of Justice after her employer refused to give her maternity leave.

The woman, known as C_D to protect her identity, became a parent through a surrogate mother in August last year. She took over care of the child, including its breastfeeding, just a few hours after its birth. Her employer – for whom she had worked for more than ten years – offered her a combination of a career break, unpaid leave and an extended holiday, but stopped short of giving her full maternity leave.

She lodged a tribunal claim alleging sex discrimination and associative pregnancy discrimination because of the pregnancy of the surrogate.

The Newcastle employment tribunal has taken the unusual step of referring her case direct to the ECJ to establish whether UK law is compatible with European directives. UK parental leave laws make no provision for surrogacy, despite affording protection to adoptive parents. However, it is estimated that between 40 and 70 children are born through surrogacy arrangements in the UK each year.

A decision from the ECJ is expected later in the year.

“It will take some time for the key legal issue in this case to be fully resolved,” said Victoria Hall, senior solicitor at Clarkslegal. “Even if the ECJ rules that mothers in the claimant`s position are entitled to protection under EU law, the UK legislation will not be compliant. Claimants would then need to rely on courts and tribunals interpreting UK legislation purposively until the government amended it to reflect the ECJ decision.

“Until the ECJ provides an answer, employers may wish to consider treating an employee in the claimant`s position in the same way as an adoptive parent.”