The ECJ has published its decision in the two surrogacy cases of CD v ST (C-167/12) and Z v A Government Department and the Board of Management of a Community School (C-363/12).  The ECJ held in these similar cases that mothers who had children via a surrogate did not have the right to maternity or adoption leave and pay and had suffered no breach of EU law.  The ECJ also held that it did not amount to sex discrimination within the meaning of the Equal Treatment Directive for an employer to deny an intended mother paid maternity leave.  Further, it was not disability discrimination under the Equal Treatment Framework Directive for an employer to refuse to grant paid leave to an intended mother who did not have a uterus and was therefore unable to support a pregnancy.

CD v ST

We will look at this case, which was a reference from the UK, first.

Facts

Ms D worked for an NHS Foundation Trust (ST).  She entered into a surrogacy agreement to have a baby and that agreement was compliant with the Human Fertilisation and Embryology Act 2008.  The egg was not Ms D's but the sperm was provided by her partner.  ST had maternity leave and pay and adoption leave and pay policies equating to the statutory provisions on paid leave.  Neither policy provided for leave and pay for intended mothers in cases of surrogacy.  Ms D made an application to her employer for paid leave under its adoption policy.  She was informed that her surrogacy arrangement did not meet the requirements of that policy, as she could not provide a matching certificate issued by an adoption agency.  Ms D then made a formal request to her employer for surrogacy leave that equated to adoption leave, save for the fact that she could not provide a matching certificate because she was not undergoing adoption proceedings.  Ms D was informed that if she was proceeding with an adoption she would be entitled to paid leave but if she was not then there was no legal right to paid time off for surrogacy.  Ms D was at no material time pregnant herself but she began to mother and breastfeed the child within an hour of its birth and continued to breastfeed the child for three months.

In June 2011 Ms D brought an employment tribunal action claiming discrimination on the grounds of sex and/or pregnancy and maternity under the Equality Act 2010.  She also claimed that the Employment Rights Act 1996 and the Maternity and Parental Leave etc. Regulations 1999 had been infringed.  Ms D further claimed that she had been subjected to a detriment by reason of pregnancy and maternity and by reason of the fact that she had sought to take ordinary or additional maternity leave.

Employment tribunal decision

The tribunal made a reference to the ECJ, asking whether an employer's refusal to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement breaches the Pregnant Workers Directive (PWD) or constitutes sex discrimination.

ECJ decision 

The PWD defines three categories of worker who must be entitled to a minimum period of maternity leave under national law: a pregnant worker; a worker who has recently given birth; and a worker who is breastfeeding.  The PWD does not contain specific rules on maternity leave concerning intended mothers under surrogacy arrangements.  The ECJ considered whether an intended mother who has had a baby through a surrogacy arrangement is entitled to the maternity leave provided for under the PWD, in particular where the intended mother may or does breastfeed the baby.  The ECJ noted that pregnant workers and workers who have recently given birth or who are breastfeeding are in an especially vulnerable situation, which makes it necessary for the right to maternity leave to be granted to them.  The ECJ had previously held that maternity leave was also intended to ensure the special relationship between a woman and her child was protected but that objective concerned only the period after pregnancy and childbirth.  The PWD pre-supposes that the worker has been pregnant and has given birth to a child.  Ms D did not fall within the scope of Article 8 of the PWD, even if she breastfed the baby following the birth.  Member States are not required to grant such a worker a right to maternity leave but the PWD does not preclude Member States from introducing more favourable provisions to intended mothers who have children through surrogacy arrangements.

The ECJ held that the refusal of Ms D's employer to provide maternity leave was not direct sex discrimination.  An intended father would be treated in the same way as an intended mother under UK law, as he would also not be entitled to paid leave equivalent to maternity leave.  There was nothing to establish that the refusal of this leave put female workers at a particular disadvantage compared with male workers and there was therefore no indirect sex discrimination.  Further, there was no less favourable treatment related to pregnancy or maternity leave, as an intended mother who has had a baby through a surrogacy arrangement has not been pregnant and cannot therefore have been subject to less favourable treatment related to her pregnancy.

Z v A Government Department and the Board of Management of a Community School

This is a very similar case, which was referred from Ireland.

Facts

Ms Z worked as a post-primary school teacher in a school managed by the Board of Management.  She had healthy ovaries and was fertile but suffered from a rare condition, which meant she had no uterus and could not therefore support a pregnancy.  During 2008/2009 Ms Z and her husband entered into a surrogacy arrangement through a specialist agency in California.  Ms Z travelled to California and was present at the birth of the child on 28 April 2010.  The child was the genetic child of Ms Z and her husband and under Californian law they were considered to be the child's parents.  Ms Z and her husband returned to Ireland, where surrogacy arrangements were unregulated, with their baby in May 2010.

Ms Z wished to take paid leave but her employer refused her application.  Ms Z brought sex and disability discrimination claims before an equality tribunal, alleging that she had been discriminated against on the grounds of gender, family status and disability and that her employer had failed to reasonably accommodate her disability.

Equality tribunal decision

The equality tribunal made a reference to the ECJ and, amongst other things, asked whether the refusal to provide leave constituted sex discrimination and whether there was discrimination on the ground of disability.

ECJ decision

The ECJ rejected Ms Z's sex discrimination claim for similar reasons to those set out in the CD v ST case detailed above.  The Court noted that the concept of disability within the meaning of the Equal Treatment Framework Directive referred not only to the impossibility of exercising a professional activity but also to a hindrance to the exercise of such an activity.  It was not disputed that Ms Z's lack of a uterus constituted a limitation resulting from a physical, mental or physiological impairment or that her condition was of a long-term nature.  Further, it did not dispute that a woman's inability to bear her own child may be a source of great suffering to her.  However, the inability to have a child by conventional means does not, in principle, prevent the intended mother from having access to, participating in or advancing in employment.  Ms Z's condition did not make it impossible for her to carry out her work or constitute a hindrance to the exercise of her professional activity.  Ms Z's condition did not therefore constitute a disability within the meaning of the Directive.

Comment

These ECJ decisions state that an intended mother is not entitled to paid leave equivalent to maternity or adoption leave on the birth of her surrogate child.  This position may change in England and Wales owing to the provisions of the Children and Families Act 2014, as it gives the Secretary of State the power to make regulations providing for statutory adoption leave to be available to the intended parents in a surrogacy arrangement.