The CJEU ruled that EU law does not require maternity leave for women who use a surrogate to have a child. Bulletin readers will be familiar with the case of Ms. D and Ms. Z who had applied for paid leave equivalent to maternity leave or adoptive leave. Their applications were refused by their employers on the basis that they had never been pregnant and they had not adopted their children.
Click here to read a previous Bulletin article outlining the expert opinion of EU Advocate General Wahl on the respective cases.
The two mothers brought separate actions before their respective national tribunals. The national tribunals deferred to the CJEU on the question of whether their employer’s refusal was 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). The CJEU found that EU law does not provide paid leave equivalent to maternity leave or adoptive leave for mothers of children born via a surrogate.
The court noted that the objective of the Pregnant Workers Directive was the promotion of increased standards of health and safety for pregnant women in the work place as they are considered a specific risk group. Furthermore, the provision relating to maternity leave expressly refers to confinement, and its purpose is to protect the mother in the especially vulnerable situations arising from her pregnancy. The court recognised that maternity leave is also intended to ensure that the special bond between mother and baby is protected but that that objective concerns only the period after ‘pregnancy and childbirth’.
Ultimately, the court found that the grant of maternity leave pursuant to the Directive presupposes that the worker concerned has been pregnant and has given birth to the child. As such, a woman who has used a surrogate mother in order to have a child does not fall within the scope of the Directive. The court did however state that the Directive was in place to ensure minimum standards for pregnant workers and that member states were free to apply more favourable rules for the benefit of commissioning mothers.
Similarly the court did not find a violation of the Equal Treatment Directive or the Employment Equality Framework Directive.
Click here to read a CJEU press release summarising the courts findings.