No maternity rights for commissioning mother in surrogacy case
26 March 2014
CD v ST (judgment of the Court)  EUECJ C-167/12 (18 March 2014) – read judgment
Z v A Government Department and the Board of Management of a Community School C‑363/12 – read judgment
The European Court (CJEU) has now considered two requests for preliminary ruling made in proceedings between intended mothers (also referred to as a commissioning mother) who have had babies through a surrogacy arrangement, and their employers concerning the refusal to grant them paid leave following the birth of the babies. It has replied that EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave.
I reported on the AGs’ opinions in both cases here, noting that AG Kokott and AG Wahl took a completely different approach in their interpretation of the applicability of Directive 92/85 in surrogacy cases; the Court has clearly decided that granting maternity leave in these circumstances would be a step too far.
In the Pregnant Workers 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 CJEU added 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 followed from this that the grant of maternity leave pursuant to the directive presupposed that the worker concerned had been pregnant and had given birth to a child. Therefore, a commissioning mother who used a surrogate mother in order to have a child did not fall within the scope of the directive, even in circumstances where she might 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.
As regards the Equal Treatment Directive, the Court found that a refusal to grant maternity leave to a commissioning mother did 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. Indeed 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.
Finally, the plight of a woman who cannot have a child by conventional means does not, in itself, prevent the commissioning mother from having access to, participating in or advancing in employment. Therefore it cannot be said that she comes within the scope of the Employment Equality Framework Directive (which prohibits any discrimination on the ground of disability in employment and occupation).
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