The CJEU (ECJ 18 March 2014, C-167/12, C.D. / S.T.) was asked to rule on whether or not a woman who paid a surrogate mother to have a baby for her was entitled to maternity leave under European Directive 92/85/EEG.
The Court stated that maternity leave was intended to protect a woman’s health during and after pregnancy and, secondly, to protect the special relationship between a woman and her child in the period following birth.
However, the Court also stated that the grant of maternity leave pursuant to Article 8 of Directive 92/85 pre-supposes that the female employee had been pregnant and had given birth to a child.
A female employee who pays another woman (a surrogate mother) to have a baby under a surrogacy arrangement does not fall within the scope of Article 8 of Directive 92/85, even if she breast-feeds the baby.
Consequently, the CJEU ruled that Member States are not required to grant maternity leave to female employees who have babies under surrogacy arrangements, even if they breast-feed the baby.
