A recent decision of the European Court of Justice (the "CJEU")  considered whether the refusal to provide paid leave equivalent to adoptive leave or maternity leave to a female worker, who has had a child through a surrogacy arrangement, offends against the principle of equal treatment of male and female workers under European Union law.
Ms. Z was employed in Ireland as a teacher in a secondary school. She had a rare medical condition which means that she cannot support a pregnancy. Ms. Z availed of surrogacy and in 2010, travelled to California to be at the birth of the child. The child is the genetic child of Ms. Z and her husband and under Californian law, she and her husband are regarded as the child’s parents.
No Entitlement to Paid Statutory Leave
Ms. Z failed to qualify for either paid statutory adoptive leave or maternity leave as she had not given birth to the child and had not adopted the child. There was no term in Ms. Z’s contract of employment which provided for leave following the birth of a child under surrogacy arrangements.
Ms. Z’s employer, the Department of Education and Skills (the "Department"), was however prepared to grant Ms. Z unpaid leave for the time she was in California prior to the birth of the child. Once the child was born, Ms. Z would be entitled to statutory unpaid parental leave for a maximum period of 14  weeks.
Discrimination under Employment Equality Acts 1998-2011
In 2010, Ms. Z took a claim to the Equality Tribunal under the Employment Equality Acts 1998-2011 against the Department claiming that she had been discriminated against on the grounds of family status, gender and disability. In 2012 the Equality Tribunal stayed the proceedings and referred a number of questions to the CJEU for a preliminary ruling.
Referral to CJEU
The CJEU was asked to determine whether the refusal to provide paid leave equivalent to adoptive leave or maternity leave to a female worker, who has had a child through a surrogacy arrangement, is contrary to the Pregnant Workers Directive, or whether it constitutes discrimination on grounds of gender or of disability contrary to the Equal Treatment Directive and/or the Employment Equality Framework Directive respectively.
Decision of CJEU
The CJEU confirmed that European Union law does not provide a woman, who has had a baby through a surrogacy arrangement, with an entitlement to paid statutory leave equivalent to maternity or adoptive leave. The CJEU addressed the allegation of discrimination under each of the relevant directives.
- Pregnancy Workers Directive
The CJEU looked to the objective of the Pregnancy Workers Directive which is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding. The CJEU noted that the Pregnancy Workers Directive expressly refers to confinement, and that its purpose is to protect the mother during her pregnancy. It added that although maternity leave is also intended to ensure the special relationship between a woman and her child is protected, that objective only concerns the period after ‘pregnancy and childbirth’.
On that basis, the CJEU held that the grant of maternity leave pursuant to the Pregnancy Workers Directive presupposes that the worker concerned has been pregnant and has given birth to a child. The commissioning mother who has used a surrogate mother to have a child does not fall within the scope of the Pregnancy Workers Directive and therefore Member States are not required to grant such a worker a right to maternity leave.
The CJEU added that in circumstances where the purpose of the Pregnancy Workers Directive is to establish minimum requirements in respect of the protection of pregnant employees, the Member States are permitted to apply more favourable rules for the benefit of commissioning mothers.
- Equal Treatment Directive - Gender Discrimination
The CJEU held that the refusal to grant maternity leave to a commissioning mother does not constitute discrimination on the gender ground under the Equal Treatment Directive in circumstances where the commissioning father is not entitled to such leave either and where female workers are not put at a particular disadvantage compared with male workers.
A refusal to grant the commissioning mother paid leave equivalent to adoptive leave is outside the scope of the Equal Treatment Directive, as under the Directive, Member States are free to choose whether or not to grant adoptive leave.
- Employment Equality Framework Directive - Disability Discrimination
The Employment Equality Framework Directive prohibits discrimination on a number of grounds including disability in employment and occupation. The CJEU noted that the concept of ‘disability’ is not defined in the Directive but held it presupposes that the limitation from which the person suffers “may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.”
The CJEU held that the inability to have a child by conventional means does not, in itself, prevent the commissioning mother from having access to, participating in or advancing in employment and on that basis held that the Employment Equality Framework Directive was not applicable in the present case.
The decision of the CJEU highlights the inability of the current protective leave framework to accommodate advances in medical technology and to provide for workers who have children through a surrogacy arrangement.
It would appear from the reasoning of the CJEU that surrogate mothers, as opposed to commissioning mothers, may be entitled to maternity leave under national legislation although this remains to be tested in Ireland.
The position set out by the CJEU is a minimum standard to be adhered to by all Member States and the CJEU noted that Member States are entitled to legislate at a national level to grant paid leave to workers who have children through surrogacy arrangements.
It is worth noting that the CJEU delivered a similar decision on the same day as the above decision in relation to a mother who had a baby through a surrogate in the United Kingdom (the "UK"). In the UK case, the commissioning mother was not entitled under UK law to maternity leave or adoptive leave. Significantly, this issue is now being addressed in the UK and it is expected that the UK Government will exercise its power under the newly enacted Children and Families Act 2014, to extend paid leave rights to commissioning surrogate parents by April 2015.
To date the Irish Government has given no indication of an intention to reform the area of protective leave to address the changes to the traditional family structure.
The CJEU decision has confirmed that employers are not obliged to give employees who have had children through surrogacy arrangements either maternity or adoptive leave. Such employees may however qualify for parental leave. Further, an employer may, at its discretion, grant employees paid or unpaid surrogacy leave as a contractual benefit under their contract of employment.