No maternity rights for commissioning mother in surrogacy case

26 March 2014 by

Pregnant_woman_silhouette.pngCD v ST (judgment of the Court) [2014] 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).
Sign up to free human rights updates by email, Facebook, Twitter or RSS

 

Related posts:

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: