We had previously posted that this case would be one to watch and the final determination when reached would have some significance to the Irish Employment landscape.
The European Court of Justice (ECJ) have now released their decisions on two cases ( C‑363/12 and C‑167/12) and found that EU law does not require that a mother who has had a baby through a surrogate agreement should be entitled to maternity leave or its equivalent.
According to the ECJ the Pregnant Workers Directive merely lays down certain minimum requirements in respect of protection, although the Member States are free to apply more favourable rules for the benefit of such mothers.
Background
Ms D., who is employed in a hospital in the United Kingdom, and Ms Z., a teacher working in Ireland, both used surrogate mothers in order to have a child. Ms D. entered into a surrogate agreement in accordance with UK law. The child was conceived using her partner’s sperm and another woman’s egg. Some months after the birth, a UK court, with the surrogate mother’s consent, granted Ms D. and her partner full and permanent parental responsibility for the child in accordance with UK legislation on surrogacy.
Both women applied for paid leave equivalent to maternity leave or adoption leave. The applications were refused on the grounds that Ms D. and Ms Z. had never been pregnant and the children had not been adopted by the parents. The national tribunals before which the two mothers brought actions have asked whether such a refusal is contrary to the Pregnant Workers Directive or whether it constitutes discrimination on grounds of sex or of disability (both types of discrimination being prohibited under the Equal Treatment Directive and Employment Equality Framework Directive respectively). In its judgments delivered today, the Court of Justice replies that EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave.
Objective of Pregnant Workers Directive
The objective of that directive is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding, such workers being considered a specific risk group. In that directive, the provision relating to maternity leave expressly refers to confinement, and its purpose is to protect the mother in the especially vulnerable situation arising from her pregnancy. The Court adds that although maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, that objective concerns only the period after ‘pregnancy and childbirth’. It follows from this that the grant of maternity leave pursuant to the directive presupposes that the worker concerned has been pregnant and has given birth to a child. Therefore, a commissioning mother who has used a surrogate mother in order to have a child does not fall within the scope of the directive, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby. Consequently, Member States are not required, on the basis of the directive, to grant such a worker a right to maternity leave.
Nevertheless, the Court adds that since the purpose of that directive is to establish certain minimum requirements in respect of the protection of pregnant workers, the Member States are free to apply more favourable rules for the benefit of commissioning mothers.
Equal Treatment
As regards the Equal Treatment Directive, the Court finds that a refusal to grant maternity leave to a commissioning mother does not constitute discrimination on grounds of sex, given that a commissioning father is not entitled to such leave either and that the refusal does not put female workers at a particular disadvantage compared with male workers. Furthermore, a refusal to grant paid leave equivalent to adoption leave to a commissioning mother is outside the scope of the Equal Treatment Directive. That directive leaves the Member States free to choose whether or not to grant adoption leave. It merely provides that when such leave is granted, the workers concerned must be protected against dismissal and are entitled to return to their jobs or to equivalent posts.
Lastly, as regards the Employment Equality Framework Directive which prohibits any discrimination on the ground of disability in employment and occupation, the Court considers that it cannot be disputed that a woman’s inability to bear her own child may be a source of great suffering for her. However, the concept of ‘disability’ within the meaning of that directive presupposes that the limitation from which the person suffers, in interaction with various barriers, may hinder that person’s full and effective participation in professional life on an equal basis with other workers. In principle, the inability to have a child by conventional means does not, in itself, prevent the commissioning mother from having access to, participating in or advancing in employment. That being the case, the Court finds that the inability to have a child does not constitute a ‘disability’ within the meaning of the Employment Equality Framework Directive and, therefore, that directive is not applicable in a situation such as that at issue here.
Irish Impact
This case is sure to provoke some intense media scrutiny and Ministers have already started the campaign for the amendment to Irish provisions to take account of such circumstances. With the new Family Leave Bill due to be introduced to the Dail this year, it seems perfectly timed for current members of Government to attach additions to this bill to account for those who have children through surrogacy. In any case the decision by the ECJ will have some ramifications for Irish Employment Law.
