In a previous post, we have looked at the protection guaranteed under EU law, and especially Directive 2006/54/EC on the implementation of equal opportunities and equal treatment of men and women in matters of employment and occupation, for women in relation to pregnancy and maternity. However what about mothers who have had a baby through a surrogacy agreement? Does EU law also apply to them?

On 18 March 2014 the Court of Justice (“CoJ”) delivered its judgments in two preliminary reference cases (see jugdment in Case C-167/12 and judgment in Case C-363/12) answering this question in the negative.

Ms. D., an employee in a hospital in the UK, and Ms. Z., a teacher working in Ireland, both used surrogate mothers in order to have a child. Under the respective applicable national laws, Ms. D. and her partner obtained full and permanent parental responsibility for the baby and Ms. Z. and her husband were considered the baby’s parents. Both women applied for paid leave equivalent to maternity leave or adoption leave. Both applications were refused on the grounds that Ms. D. and Ms. Z. had never been pregnant and the babies had not been adopted either. The two cases reached the CoJ upon preliminary references from the national courts that heard the actions brought by the two mothers against those refusals.

Depeding on the arguments brought by the parties in the two cases, the CoJ examined whether the provisions of three Directives could be applicable: (i) Directive 2006/54/EC, the “Equal Treament Directive”; (ii) Council Directive 92/85/EEC, the “Pregnant Workers Directive” and (iii) Council Directive 2000/78/EC, the “Employment Equality Framework  Directive”.

The CoJ found however that the facts of the two cases did not fall under the scope of any of these Directives. Let’s have a look at the reasoning of the CoJ for each one of them:

(i) Equal Treatment Directive: According to Article 4 of this Directive, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration is to be eliminated. Article 14 further states that there is to be no direct or indirect discrimination on grounds of sex in the public or private sectors, including public bodies, in relation inter alia to employment and working conditions, including dismissals, as well as pay. These articles need, according to the CoJ, to be read in conjunction with Article 2(1)(a) and (b): the refusal to provide maternity leave constitutes direct discrimination on grounds of sex only if the fundamental reason for that refusal applies exclusively to workers of one sex. However, in the case at hand, a commissioning father who has had a baby through a surrogacy arrangement is treated in the same way as a commissioning mother in a comparable situation, i.e. he is not entitled to paid leave equivalent to maternity leave. Moreover, as regards indirect discrimination, the CoJ finds that there is nothing in the case file to establish that the refusal to grant the leave at issue puts female workers at a particular disadvantage compared to male workers. A commissioning mother who has had a baby through a surrogacy arrangement cannot, by definition, be subject to less favourable treatment related to her pregrancy, given that she has not been pregnant with that baby. Finally, this Directive leaves the Member States free to choose whether or not to grant adoption leave. Only when the Member States decide to do so, the Directive guarantees the protection of workers when they decide to exercise such rights.

(ii) Pregnant Workers Directive: In respect of this Directive, the CoJ finds that a female worker who as a commissioning mother has had a baby through a surrogacy agreement does not fall within the scope of this Directive and the Member States are no required to grant such a worker a right to maternity leave on the basis of this Directive. The reason is that the purpose of the maternity leave provided for in Article 8 of the Directive is to protect the health of the mother of the child in the especially vulnerable situation arising from her pregnancy. This protection concerns only the period after “pregnancy and childbirth”. Thus the application of this Directive presupposes that the female worker entitled to such leave has been pregnant and has given birth to a child. The CoJ states, however, that this Directive provides for minimum standards in respect of protection of pregnant workers. Consequently, Member States are free to apply more favourable provisions covering also commmissioning mothers who have had a baby through a surrogacy arrangement.

(iii) Employment Equality Framework  Directive: The purpose of this Directive is to lay down a general framework for combating discrimination as regards employment and occupation, on any of the grounds referred to in Article 1, inlcuding disability. In previous case law (see Case C-337/11 HK Danmark), the CoJ has held that the concept of “disability” in the meaning of this Directive had to be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. The CoJ acknowledges that a woman’s inability to bear her own child may be a source of great suffering for her. However, the CoJ finds that the inability to have a child by conventional means does not in itself, in principle, prevent the commissioning mother from having access to, participating in or advancing in employment. In the case at hand, there was nothing in the case file demonstrating that the commissioning mother’s condition by itself made it impossible for her to carry out her work or constituted a hindrance to the exercise of her professional activity. Thus, this condition cannot be considered as a “disability” within the meaning of the Directive.