The mum, known only as Mrs D, claimed she was discriminated against by her employer, an NHS foundation trust, because she was refused maternity pay on the grounds that she hadn't given birth to her baby.
Ms D told an employment tribunal in Newcastle that her employers had said that if she was adopting a child then she would be entitled to paid leave but there was 'no legal right to paid time off for surrogacy'.
The tribunal ruled that Mrs D was not entitled to maternity pay because that right rests with the child's birth mother. So she took her case to the European Court of Justice in Luxembourg.
But, in a case which sets a precedent for the whole of the EU, judges ruled member states did not have to provide maternity leave to women who had not given birth.
Judges said that the employer's refusal to provide maternity leave in such a case 'does not constitute discrimination on grounds of sex'.
They added that the EU's pregnant workers directive was designed only to help workers who had recently given birth, but member states were 'free to apply more favourable rules for the benefit of commissioning mothers'.
The ruling comes just months before a new law - the Children and Families Act - enshrines maternity leave for British women who have babies via a surrogate; meaning that from next year, British mothers who raise children delivered through surrogacy will have the right to paid maternity leave.
Partner Andrew Twineham at Langridge Employment Law, in Newcastle, told Chronicle Live: "The case illustrates that under European Law one of the key issues regarding maternity leave is the protection of the health of the mother who has given birth to a child.
"That protection does not extend to 'non-birth' mother in a surrogacy arrangement. It goes on to say that there is nothing to stop individual countries from adopting more favourable regimes – that is exactly what is envisaged in the Children and Families Act from April 2015."
More on Parentdish: Maternity pay: Your rights explained