The woman started working as a midwife sonographer for her employer in July 2001. Her baby was born through a surrogate mother in August last year and the woman began breastfeeding the child soon after the birth, something that can be induced through hormone treatments and drugs.
Her employer offered a career break, reduced hours and unpaid leave, but refused to give her maternity leave, so she went to an employment tribunal. It ruled that the issue had to be decided by the ECJ.
A spokesman for the Department for Business, Innovation and Skills said that there were no plans to change the law regarding people who have a child through surrogacy.
John Read, an employment law expert at XpertHR, a human resources website, said: “Under UK law, mothers who have a baby via a surrogate mother and assume responsibility for it under a parental order are not entitled to the same rights and protection, for example regarding discrimination, as mothers who give birth or adopt.
“It’s unclear whether the EU legislation from which these rights derive covers surrogate mothers, and the tribunal will ask the ECJ to clarify this. If the ECJ decides that surrogate mothers are covered, our courts will need to interpret UK law to give effect to this, until Parliament amends the legislation.
“It is extremely unusual for a tribunal to make a referral to the ECJ, but the tribunal found no case law to help it determine the issue.”