Steve Peers

The desire to have children has always been deeply understood, especially for women facing medical obstacles to childbirth. Adoption was the traditional solution, but recent decades have introduced alternatives like IVF and surrogacy.

While the EU doesn’t directly regulate these practices, it does address maternity leave through the Pregnant Workers’ Directive. The Directive on Sex Discrimination in Employment further tackles the employment aspects of pregnancy. This directive prohibits discrimination against women undergoing IVF treatment even before pregnancy, as established by the Court of Justice of the European Union (CJEU) in the Mayr case.

A recent question concerns the maternity leave rights of surrogate mothers. The CJEU addressed this for the first time in the CD and Z cases. The CD case involved a British woman whose child was genetically fathered by her partner and born via surrogacy, while the Z case involved an Irish woman whose child was genetically hers and her husband’s, also born via surrogacy.

The CJEU argued that the Pregnant Workers’ Directive, which establishes the right to maternity leave, applies only when the woman who gives birth is the same woman taking maternity leave. They based this on the Mayr judgment, which stipulated that the directive is applicable only after pregnancy begins. The Sex Discrimination Directive was also deemed inapplicable because it treats commissioning mothers and fathers equally. The court found no evidence of indirect discrimination, and the protection against discrimination for women who have been pregnant or taken maternity leave was irrelevant because the Pregnant Workers’ Directive didn’t apply. Because this fell outside EU law’s scope, the EU Charter couldn’t be used to evaluate the Sex Discrimination Directive’s validity.

The Z judgment reiterated this reasoning and added that the Sex Discrimination Directive leaves adoption leave to member states’ discretion. It addressed the Framework Equality Directive, specifically concerning the prohibition of disability-based discrimination. The court determined that because this directive focuses solely on employment-related discrimination, the disability in question must hinder the worker’s professional life. However, Ms. Z’s condition didn’t impact her work access. Lastly, the court stated that the UN Convention on the Rights of Disabled Persons, despite being ratified by the EU, couldn’t be used to challenge the Framework Equality Directive’s validity because the convention was deemed “programmatic.”

The two cases received opinions from different Advocates-General with contrasting viewpoints. The CJEU largely agreed with Advocate-General Wahl’s opinion in the Z case. Conversely, Advocate-General Kokott, in the CD case, suggested that societal changes and the EU Charter of Fundamental Rights allow for the Pregnant Workers’ Directive to encompass situations where one woman carries and delivers the child, while another raises the newborn. Possibly inspired by the Judgment of Solomon, she proposed splitting maternity leave between the two women.

Comments

It seems illogical that women who see themselves as new mothers and care for a child genetically related to them (or their partner) aren’t protected under EU law, despite its extensive maternity leave regulations. The core principle of these judgments—that the Pregnant Workers’ Directive should apply to the same woman throughout pregnancy, childbirth, and childcare—accurately reflects the legislature’s intent. However, applying the Mayr judgment feels slightly misplaced as it focused on whether the woman had ever been pregnant, long before caring for a child.

The EU legislature’s decision to distinguish adoption leave from maternity leave and pregnancy within the Sex Discrimination Directive is clear. Logically, the Framework Equality Directive, being employment-focused, should only apply to disabilities affecting employment. However, the CJEU’s application of this principle isn’t entirely convincing. The Z case struggles to differentiate itself from the Coleman judgment, where a child’s disability potentially impacting the worker’s employment led to the directive’s application. If the directive applies when a worker’s employment is linked to another person’s disability, why not when linked to the worker’s own disability if it impacts their work life, even indirectly, as with Ms. Z’s maternity leave situation?

The court’s assertion that the UN Convention on the Rights of Disabled Persons can’t challenge EU law’s validity is arguably incorrect. The convention’s Article 5(2) prohibits disability discrimination, a clause typically recognized by the court as directly effective and thus grounds for contesting EU acts’ validity. A better approach, yielding the same outcome, would have been acknowledging that applying the convention in the Z case falls under member states’ jurisdiction, not the EU’s (a “mixed agreement”), especially since the court already ruled EU legislation inapplicable in this case.

These cases present direct discrimination, not between men and women (as men can also experience infertility), but between mothers who birth their children and those who don’t. While their experiences with pregnancy and childbirth differ, both groups equally share childcare responsibilities. The general principle of equal treatment under Article 21 of the Charter seems relevant here.

Moreover, the court’s claims regarding indirect discrimination lack strength, given that women are statistically more likely to seek time off for childcare. In cases involving same-sex couples, denying them equal treatment regarding maternity or adoption leave compared to heterosexual couples could be considered discriminatory based on sexual orientation, as same-sex couples cannot biologically conceive a child together.

The Court’s strict interpretation of EU legislation overlooks its fundamental purpose in two ways. Firstly, women taking time off after adoption (with or without a surrogate) face similar work-life balance challenges as biological mothers. EU law on gender equality in employment aims to ensure women’s equal access to the workforce. Adoptive mothers likely face comparable obstacles to biological mothers. Secondly, considering a child’s best interests (raised by Advocate-General Kokott) and fostering mother-child bonding (acknowledged by the court), a child’s adoptive status shouldn’t matter.

This leads to a more profound question: why does the EU legislature enable such significant disparity in newborn care? Advocate-General Kokott, acknowledging the Charter’s emphasis on a child’s contact with both parents, extends this to the mother’s rights. However, if we decouple pregnancy and childbirth from childcare, as she proposes, should childcare automatically fall on the mother? Why grant women maternity leave without equivalent (or transferable) paternity leave for men? In this context, generous maternity leave exacerbates the division of childcare roles between men and women, further impacting workplace participation. Put simply, maternity leave becomes a gilded cage of gender discrimination.

Barnard & Peers: chapter 20