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ECJ rules that surrogate mothers are not entitled to maternity or adoption leave or pay

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The ECJ has held in two recent cases that mothers who had children via a surrogate and were subsequently denied maternity or adoption leave and pay had not been discriminated against. The court found that there was no sex discrimination because a man who had organised a surrogacy would be treated in the same way. It held that the EU Pregnant Workers Directive protected those who were in a vulnerable position because they had recently given birth and therefore, “commissioning mothers” would not be protected under it. The ECJ also held that there was no disability discrimination under the Equal Treatment Framework Directive where a woman, who has a disability preventing her from giving birth and whose genetic child has been born via a surrogacy arrangement, is refused paid leave equivalent to maternity or adoption leave.

In the first case, CD v ST, the Claimant D had arranged to have the child through surrogacy but her employer did not provide her with maternity pay or leave. The ECJ held that the pregnant workers directive presupposes that the worker has been pregnant and given birth to the child. It found therefore that to benefit from the EU Pregnant Workers Directive, the individual must have been pregnant and given birth. As D was the commissioning mother, she had not been pregnant and therefore was not entitled to protection under the directive. It was also held that there was no sex discrimination in not allowing a commissioning mother maternity leave because a commissioning father who has had a baby through a surrogacy arrangement is treated in the same way.

In a similar case, Z was a surrogate mother who was unable to have children because she did not have a uterus. She brought sex discrimination and disability discrimination claims. The ECJ rejected her sex discrimination claim for similar reasons to the above. In respect of her disability discrimination claim, the ECJ accepted that a woman’s inability to have a child could be a source of suffering, pursuant to the legislation a “disability” prevents a person from full and effective participation in professional life when compared to another. As Z’s condition did not restrict her from effective participation in professional life she was not considered disabled and therefore could not advance her discrimination claim under the Equal Treatment Directive.

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Do mothers who have children through surrogates have a right to maternity leave?

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The European Court of Justice has been asked to decide a mothers’ right to maternity leave if she has a baby through a surrogacy arrangement. Two cases have been referred to the ECJ and the Advocate Generals (advisers for the ECJ) have offered conflicting opinions. Such opinions are usually adopted as final judgments by the ECJ but in this scenario only one can be.

Case 1

C-D became a mother under a surrogacy agreement, using her partner’s sperm but not her ova. C-D started breastfeeding the baby within an hour of the birth. Her employer refused her requests for maternity or adoption leave and instead offered her support by means of a career break, annual leave, reduced hours and unpaid leave. Consequently, she brought tribunal claims arguing sex and/or pregnancy and maternity discrimination.

However, the Advocate General made two points:

An intended mother who has a baby through a surrogacy arrangement has the right to receive maternity leave where she takes the child into her care following the birth, even if the intended mother does not breastfeed following birth. This is to protect the special relationship between the mother and the child following pregnancy.
The intended and surrogate mother should both be entitled to the two weeks compulsory maternity leave and the remainder leave entitlement should be divided between them.

Case 2

Z, an Irish citizen, had a child using an American surrogate. She had healthy ovaries but no uterus meaning she could not fall pregnant. Her employer only offered her unpaid leave on the grounds that there was no provision for paid leave arising from the birth of a child via a surrogacy agreement in her employment contract. Consequently, Z brought sex and disability discrimination claims.

The Advocate General found that Z had not been discriminated against by having been denied the right to maternity leave. In brief, he said that the purpose of maternity leave was to protect the health and safety of female workers in a vulnerable condition and not as protecting a right to paid maternity leave in the case of a mother who has her genetic child through a surrogacy arrangement. He went onto say that whether Ireland should extend the scope of maternity leave to cover mothers through surrogacy was a matter for the Irish Parliament.

Interestingly, he said that there was no disability discrimination because Z’s infertility did not hinder her professional life.

Summary

The conflicting opinions may be explained by the fact that each case was argued under different parts of anti-discrimination law and that Ireland does not allow for surrogacy (whereas the UK does). Whilst it will be up to the ECJ to decide which opinion they prefer, it will be an interim position only as the UK Government has recently announced its decision to extend maternity rights to parents through surrogacy. This should come into force in 2015.