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Women who use a surrogate aren't entitled to maternity leave under EU law

Women who have children through surrogacy arrangements are not entitled to maternity leave under EU law, the European Court of Justice has ruled.

The decision comes after European Court Advocates-General gave conflicting advice last year on two cases, one from the UK and the other from Ireland, involving women who had legally had children using the services of surrogate mothers.

The Court said that certain minimum protections only applied to women who are pregnant or have adopted a child.

The women involved had not been pregnant nor had legally adopted their children, because their parenthood had already been established at birth.

Commentators said that the Court had followed the letter of the law, but suggested that a gap in the law had been exposed.

But it was pointed out that member states are free to provide maternity leave as they find appropriate.

Shared parental leave, for example, which is to be implemented in the UK in April 2015, will give eligible parents in surrogacy arrangements entitlement to statutory adoption leave and pay, and shared parental leave and pay.

Parents in these arrangements will also be entitled to time off work to go to two antenatal appointments with the surrogate mother.

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Acas offers detailed advice on Parental Leave and Paternity leave and pay. Its experts can visit your organisation and help you find ways to improve the experiences of working parents. See Parents and carers: how Acas can help for details.

Practical training is also offered on Maternity, paternity and adoption, Flexible working, and Equality, diversity and the Equality Act 2010.

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