Hannah Ross-McAlpine and Annick Masselot 19 January 2015

In the wake of modern day surrogacy, who is entitled to be recognised as a mother? Never before have motherhood norms been challenged with such veracity and complexity. Surrogacy is increasingly occurring across borders. This means that the ability to protect mothers involved in this process is a global concern.

The Kerala High Court in India recently declared that surrogacy will not prevent women from accessing maternity leave. The hearing, in October, focussed on the question of whether a commissioning mother is entitled to maternity leave after the birth of the child. The recently publicised decision stated that no woman should experience discrimination on the grounds that she secures a child through surrogacy. This decision implies that a biological relationship with a child is not a necessary precursor to motherhood. This decision recognises the importance of nursing and the attachment between a child and their intended parent.

However this is not standard practice internationally. The Court of Justice (CoJ) of the European Union has ruled that mothers who have children through surrogacy arrangements are not entitled to maternity leave. The current pregnant workers directive is designed to only help workers who had recently given birth, hence the exclusion of women who obtain children through surrogacy. However, the CoJ stated that member states of the European Union were allowed to create more favourable national rules for the benefit of commissioning mothers.

As the EU has not taken the lead on this issue, member States of the EU have developed their own national laws on surrogacy. This means that without overarching (EU) guiding principles the national laws are varied, incompatible and uncomprehensive amongst themselves and with the position taken by the CoJ. Under the Children and Families Act 2014, for instance, British mothers who raise children born through surrogacy will be given the right to paid leave. The narrow interpretation of the CoJ, in contrast to the approach adopted by Britain, fails to recognise the crucial need for intended mothers (and parents in general) and their babies born through surrogacy to bond. Allowing intended parents time off work to develop this attachment is essential for the child’s developmental outcomes and wellbeing.

The ever increasing prevalence of surrogacy is not managed well by the sometimes decade old legislation, in some countries. It is this legislation that often fails to protect vulnerable parties that do not meet the traditional definition of ‘mother’ and ‘motherhood’. If law, both domestic and international, is genuinely going to provide protection for those involved in surrogacy the ability to adapt to changing norms and technology will prove essential.