Surrogacy and maternity rights

2 October 2013 by Rosalind English

C-363/12: A Government Department and the Board of Management of a Community School – read AG Wahl’s opinion

Case C‑167/12 : C.D. v S.T. – read AG Kokott’s opinion 

Two opinions from Luxembourg on exactly the same issue, with diametrically opposed conclusions. AG Wahl (male) says, in brief, that the Pregnancy Workers Directive does what it says on the tin. It does not apply to non-pregnant employees, even though one of these might be an “intended mother” i.e. a woman who for medical reasons cannot carry a pregnancy to term, who has commissioned a surrogacy.  AG Kokott (female)  concludes firmly that the Pregnancy Workers Directive was designed to protect the relationship between mothers and their unborn or newborn, whether naturally produced or arranged by surrogacy.  These opinions were published on the same day, with no mention in either of the other case. We can only conclude that the AGs read each other’s drafts, and decided to go to press with them together, leaving the CJEU to reconcile them in some way or another.

Legal and Factual background

There are two different types of surrogacy. Genetic surrogacy arrangements are where  a woman produces healthy ova but for various reasons cannot carry a foetus to term, and commissions another woman to carry her fertilised egg to term. The other type of surrogacy is where the surrogate is artificially fertilised, so that the baby she produces is genetically half hers, and half the intending father’s. These arrangements, which are legal in the United Kingdom, are a lifeline for parents facing certain reproductive difficulties. But the ethics, laws and regulations surrounding this technology are by no means settled in EU member states. Indeed, many EU countries prohibit surrogacy arrangements altogether. And, as we can see from these opinions, even the EU authorities are uncertain which way to lean where national authorities have not legislated themselves in this ethically tricky area.

AG Wahl’s opinion

The first was a request for a preliminary ruling from the CJEU by the Equality Tribunal (Ireland). The question related to the entitlement to maternity pay for a woman (Ms Z)  who, for medical reasons, was unable to carry a pregnancy and who had therefore made surrogacy arrangements. Not surprisingly, Irish law does not regulate surrogacy. No provision is therefore made for paid leave of absence from employment equivalent to maternity leave or adoption leave for parents whose children are born under a surrogacy arrangement. It only makes provision for leave from employment for “pregnant employees”.

So Ms Z had to turn to EU law for grounds on which to base her claim. Under Directive 2006/54  (the “Recast Equal Treatment Directive)  unfavourable treatment of a woman in relation to pregnancy or maternity amounts to direct discrimination on grounds of sex.  Recital 24 of the Directive adds that it is legitimate to protect a woman’s biological condition during pregnancy and maternity and to introduce maternity protection measures as a means to achieve substantive equality.

But does that cover a case where the woman in question cannot herself carry a pregnancy to term, so has put in place surrogacy arrangements? What are her specific rights during the term of the surrogate’s pregnancy?  The terms and conditions of Ms Z’s employment included a right to paid adoption leave and maternity leave. There was no express provision in Ms Z’s contract of employment for leave arising from the birth of a child through a surrogacy arrangement.

Questions for the Court

In essence, the referring court sought guidance on two issues. First: does the Recast Equal Treatment Directive preclude as discriminatory on grounds of sex a refusal to grant paid leave of absence equivalent to maternity or adoption leave to a mother who has had a child through a surrogacy arrangement? Second: does such a refusal constitute discrimination on grounds of disability under Directive 2000/78  (“the Equality Framework Directive”), given that the commissioning mother suffers from a condition which prevents her from giving birth? Furthermore, these questions have to be considered against a background of very differing levels of acceptance in member states:

Undoubtedly, therefore, the present case – like any case linked to surrogacy in the current legal landscape – involves fundamental questions concerning the demarcation of socially and culturally accepted forms of medically assisted reproduction. In this sense, separating the legal issues charted above from the political, ethical and cultural considerations which underpin surrogacy may prove to be difficult.

The Court was therefore not called upon to legislate on the legitimacy of surrogacy. It was solely asked to decide whether the right of a woman who has had her genetic child through surrogacy to paid leave of absence equivalent to maternity or adoption leave is protected as a matter of EU law

AG Wahl’s conclusions

In the AG’s opinion, a woman such as Ms Z did not have a right to paid leave of absence inferred either from either the Recast Equal Treatment nor the Equality Framework Directives.  She certainly was not entitled to protection from Directive 92/85 (“the Pregnant Workers Directive”), the specific purpose of which is to offer protection to pregnant employees, and to help female workers recover from the physical and mental constraints of enduring pregnancy and the aftermath of childbirth.

1) The Equality Question

In the case of Mayr [2008], the  CJEU concluded that a worker who undergoes IVF treatment cannot rely on the protection afforded by Directive 92/85 in relation to dismissal, if the fertilised ova have not yet been transferred into her uterus. However, the Court did consider that such a worker, who is not pregnant within the meaning of Directive 92/85, could nonetheless rely on the protection against discrimination on grounds of sex granted by the Recast Equal Treatment Directive. This is because the dismissal of a female worker because she is undergoing a specific kind of treatment which forms a crucial stage of the IVF process and which directly affects only women constitutes direct discrimination on grounds of sex.

But despite this, AG Wahl had difficulties in accepting that Ms Z has been subject to prohibited discrimination on grounds of sex. In the present case, the differential treatment of which Ms Z complained was not based on sex, but on the refusal of national authorities to equate the situation of a commissioning mother with that of either a woman who has given birth or an adoptive mother. It thus followed that the Recast Equal Treatment Directive did not apply to the less favourable treatment of which Ms Z complained. The position of an adoptive parent – who has not had to go through the specific mental and physical constraints of pregnancy – is analogous to that of a someone who has commissioned surrogacy. And no provision is made under EU law which would entail an obligation for Member States to grant paid leave of absence for adoptive parents.

2) The Disability Question

In relation to the issue of disability – ie whether there was discrimination on grounds of disability because the mother concerned suffers from a condition which prevents her supporting a pregnancy – the AG’s answer was also negative. Although the concept of ‘disability” has evolved considerably in the Court’s case law in the specific context of Directive 2000/78, he did not think that

the condition from which Ms Z suffers hinders, within the meaning of the Court’s case-law, ‘in interaction with various barriers … the full and effective participation of the person concerned in professional life on an equal basis with other workers’ (emphasis added). Indeed, as the Court has observed, the concept of ‘disability’ within the meaning of Directive 2000/78 is to be understood in relation to the possibilities for that person to work, and to exercise a professional activity.

This approach appeared to be consistent with the aims pursued by the directive, namely, to combat discrimination in the specific context of employment and, consequently, to enable a person with a disability to have access to and participate in employment.

In other words, because of the inherently contextual nature of disability, the issue of what constitutes a disability for the purposes of the Directive 200/78  is whether the impairment in question constitutes a hindrance to exercising a professional activity. [emphasis added].

As profoundly unjust as the inability to have a child by conventional means may be perceived to be by a person who wishes to have a child of his or her own, I cannot interpret the existing EU legislative framework as covering situations which are not linked to the capacity of the person concerned to work.

AG  Wahl therefore took the view that the less favourite treatment of which Ms Z complained could not be construed as falling within the scope of this Directive.  In his final remarks, AG observes that

Indeed, construing an entitlement to paid leave of absence from employment judicially would entail taking a stand on questions of an ethical nature, which have yet to be decided by legislative process. If extending the scope of protection of maternity or adoption leave (or indeed creating a separate form of leave for surrogacy arrangements) is considered to be socially desirable, it will be for the Member States and/or the EU legislature to put in place the necessary legislative measures to attain that objective.

AG Kokott’s opinion 

This dealt with a remarkably similar case, this one from the Newcastle Employment Tribunal, concerning the entitlement to maternity pay of a woman who had commissioned surrogacy. In her case this was not a genetic surrogacy arrangement, but the fact that the baby would not be genetically her offspring made no difference to the underlying merits of the case.  Currently, mothers in the UK whose babies are born through a surrogacy arrangement are not entitled to maternity or adoption leave to bond with and care for their new babies. The only provision in domestic legislation for parents in this position is under the Maternity and Parental Leave etc. Regulations 1999, which provides  that “persons to whom parental responsibility for a child born to a surrogate mother has been transferred pursuant to a parental order may receive unpaid leave under certain conditions.” (emphasis added).

This time the question turned on the applicability of the Pregnant Workers Directive.

AG Kokott concluded that  as a worker within the meaning of Article 2 of Directive 92/85, an intended mother has the right to maternity leave under Article 8 of that Directive. She rejected the opposing arguments, that the structure and general scheme of the Pregnancy Directive 92/85  suggest that a biological monistic concept of motherhood should be taken as a basis when applying it. She does acknowledge that in the early 1990s, when the Directive was passed, the practice of surrogacy was not as widespread as it is today.  It is thus not surprising that the normative structure of Directive 92/85 is based on an approach which takes biological motherhood as the norm.

But the AG was of a mind to take an expansionist view of the Pregnant Workers Directive, noting that not all the potential dangers listed in it affect intended mothers (as well as biological mothers).

In the same way as a woman who herself has given birth to a child, an intended mother has in her care an infant for whose best interests she is responsible. However, precisely because she herself was not pregnant, she is faced with the challenge of bonding with that child, integrating it into the family and adjusting to her role as a mother. This ‘special relationship between a woman and her child over the period which follows pregnancy and childbirth’ warrants protection in the case of an intended mother in the same way as it does in the case of a biological mother….As was the case with the employment of a wet nurse in times past, in surrogacy cases the mothering role is shared between two women who must be granted the protection afforded by Directive 92/85 at the times relevant to them.

So AG Kokott and AG Wahl take a completely different approach in their interpretation of the applicability of Directive 92/85. The CJEU will have to take its pick when it comes to reconcile the two cases. Both cases turn on  a dispute over whether there is a general ‘legal right to paid time off for surrogacy’ equivalent to adoption leave’. In both cases, the Recast Equal Treatment Directive was said not to be engaged because neither of the intended mothers, claimants in both proceedings, could rely on the surrogate mother’s pregnancy in order to be treated herself as a pregnant woman at work. But where Ms Z failed under the disability clause of  Directive 2000/78, the claimant in C.D. got home on the Pregnancy Directive. We await with interest what the CJEU makes of it all.

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