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Both the adoptive and birth mother in surrogacy agreements are entitled to maternity leave when a child is born, according to a landmark legal opinion published by the European court of justice .
The decision, based on the case of a mother from Newcastle upon Tyne who works for the NHS, requires the two women to split the allocation of paid leave. Both must receive a mimimum of two weeks each.
Although only issued by an advocate general of the ECJ, such initial opinions are usually adopted as final judgments by the full court. The ECJ, which sits in Luxembourg, is the highest tribunal in the European Union and decides on EU law. It will encourage the UK government to press ahead with planned reforms.
The NHS employee, identified only as CD, began caring for and breastfeeding the child within an hour of its birth in August 2011. She and her partner subsequently became the registered parents.
She also requested time off for maternity leave and was eventually granted leave at the hospital’s discretion. CD, however, pursued the point to an employment tribunal, arguing that she should have been legally entitled to the leave.
In the decision, the advocate general did not specify precisely how the maternity leave should be divided but said the mother who adopts or cares for the child, even if she does not breastfeed, should receive at least two weeks paid holiday.
The ruling said: “An intended mother who has a baby through a surrogacy arrangement has the right to receive maternity leave … in any event where she takes the child into her care following birth, surrogacy is permitted in the member state concerned and its national requirements are satisfied, even where the intended mother does not breastfeed the child following birth.
“The leave must amount to at least two weeks and any other maternity leave taken by the surrogate mother must be deducted.”
Marian Bloodworth, employment partner at the law firm Berwin Leighton Paisner, said: “This is a significant departure from what has gone before in the European court of justice. This is the first time the courts have suggested that non-biological mothers should be offered a corresponding level of protection to birth mothers.
“The ECJ has been at pains to observe that birth mothers are entitled to specific protection at law given the particular and uniquely female biological demands of giving birth, the need for birth mothers to have sufficient time to bond with their babies before returning to work, and the potential detriment that they can suffer in the workplace as a result of childbirth and taking maternity leave.
“Employers will need to wait now to see whether the ECJ follows suit – if it does, then they will need to amend their family leave policies accordingly. While a decision to extend leave to mothers via surrogacy is unlikely to impact too many employers in the UK – at present there are only between 40 and 70 surrogate births each year – the willingness of the court to extend existing maternity rights could have a greater impact.”
Audrey Williams, head of discrimination at the law firm Eversheds, said: “[This] confirms that the European pregnant workers directive does give mothers through surrogacy the right to maternity leave, whether or not they breastfeed, and that this right is directly effective.
“Assuming the court of justice adopts the same interpretation of the law, as it often does, pressure is likely to mount on the government to now press ahead with reform. Employers too will need to take note.”
In a separate opinion by another advocate, involving an Irish case, the ECJ declined to give maternity leave to a non-biological mother who had not breastfed the child who was originally born to a mother in California.
The UK law is changing. Ministers have said that the intended parents in a surrogacy agreement will qualify for maternity leave by 2015.
The ruling comes as figures from the Department for Education show that the number of children adopted in England has reached its highest level in the last 20 years.
Almost 4,000 children in care were adopted between April 2012 and March 2013 – the highest figure since comparable records began in 1992, the DfE said.
The figure also represents a 15% increase on the previous year.
In 2011, David Cameron urged potential adopters and foster parents to come forward as it was announced that just 60 babies were adopted in 2010-11.
Since then the figure has marginally increased to 80 in 2011-12 and 90 in 2012-13.
The government also announced plans to speed up the adoption process by letting children move in with their possible future families before lengthy legal procedures are finalised.
It also issued new guidance to local authorities making it clear adoption should be considered as an option for more children.
The children and families minister, Edward Timpson, said: “It is hugely encouraging that the number of children adopted from care has risen to the highest level yet – but too many children are still waiting too long for stable, loving homes.
“More needs to be done to recruit adoptive parents. That’s why we have made the £150 million Adoption Reform Grant available for local authorities to spend on recruitment reform, and this summer I gave voluntary adoption agencies a further £16 million to expand and recruit more adoptive parents. I hope to see this funding deliver results.”
This article originally appeared on guardian.co.uk
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