The Surrogacy Dilemma
Two contrasting opinions of Advocate Generals, both delivered on 26 September 2013, concerning surrogacy and the right to paid leave, demonstrate the difficulties in reconciling views in this untested area.
C.D. v S.T (Case C-167/12); Advocate General Kokott
This referral came directly from the Newcastle ET. CD was the intended mother of a baby born whom she planned to and did breastfeed within hours of its birth to a surrogate mother. CD twice applied for paid leave under her employer’s adoption leave policy. Paid leave was granted on the second occasion. However, CD brought claims of unlawful discrimination on the grounds of sex and/or pregnancy and motherhood in relation to the initial refusal.
AG Kokott considered whether CD was a category of worker caught by Article 2 of Directive 92/85. The interim conclusion was that Directive 92/85 (by virtue of Article 2(c)) readily included ‘intended mothers’ who were breastfeeding. The AG then considered the objectives pursued by Directive 92/85. It was acknowledged that the purpose included protecting workers’ particular vulnerabilities, some of which would not apply to non-pregnant mothers. However, the Directive also sought to protect the special relationship between a woman and a child following birth. This relationship still needs protecting in the case of a woman who has not actually given birth. AG Kokott’s opinion was that the Directive could apply not just to breastfeeding intended mothers, but to all intended mothers once they take the place of the surrogate; the Directive “must be understood in functional rather than monistic biological terms”.
AG Kokott opined that the decision to breastfeed or not should not be decisive in determining rights of paid leave. With teleological reasoning, Article 2 must be capable of encompassing workers, including intended mothers, who do not breastfeed. Accordingly, the right to maternity leave under Article 8 should apply. This includes compulsory leave of at least two weeks (Article 8(2)), for both the intended and surrogate mother, and the remaining leave to the intended mother subject to a deduction of leave already taken by the surrogate.
Z v A Government Department and the Board of Management of a Community School (Case C-363/12); Advocate General Wahl
This referral was made by the Equality Tribunal (Ireland). The Maternity Protection Act 1994 provides that ‘pregnant employees’ are entitled to maternity leave and the Adoption Leave Act 1995 establishes a minimum period of statutory adoption leave. In this instance, it was arranged for a genetic child of Z and her husband to be born to a surrogate mother in California. During the pregnancy Z applied to her employer for, and was refused, paid leave.
Upon referral to the CJEU, AG Wahl recalled the 14th recital in the preamble to, and Article 8 of, Directive 92/85. AG Wahl highlighted the emphasis placed on the vulnerability of women ‘before and/or after confinement’; the intention being to protect a woman’s biological condition including the physical and mental constraints of pregnancy and beyond.
AG Wahl acknowledged the need to protect the special relationship but saw this as a logical corollary of childbirth and breastfeeding: “if that objective were given independent significance, the scope of protection afforded by Article 8 of Directive 92/85 could not, in my view, be meaningfully limited only to women who have given birth, but would necessarily also cover adoptive mothers or indeed, any other parent who takes full care of his or her new-born child”. Accordingly, Directive 92/85 does not confer a right to paid leave equivalent to maternity in surrogacy situations.
AG Wahl concluded that there was no differential treatment based on sex contrary to Directive 2006/54. AG Wahl distinguished Mayr v Backerei und Konditorei Gerhard Flockner OHG, Case C-506/06  ECR I-1017, in which it was concluded that the dismissal of a female worker because she was undergoing a specific kind of treatment (a crucial stage of the IVF process affecting only women) was direct discrimination on the grounds of sex. The protection so offered stems from the intimate link between pregnancy and the sex-specific features of the treatment, whereas Z’s complaints related not to her being, or becoming, pregnant, but to her being a female parent. The differential treatment was not related to sex, but to the failure of national authorities to equate the rights of intended mothers with women who have given birth. Accordingly, Directive 2006/54 does not preclude national legislation which failed to provide for paid leave in surrogacy situations.
Z also argued disability discrimination, given her inability to support a pregnancy. AG Wahl’s opinion was that Z’s situation is not covered by the concept of disability under Directive 2000/78, largely due to the lack of an interrelationship between the limitation and the capacity to work. The AG did not consider a requirement to grant paid leave to be a ‘reasonable accommodation’.
The constructive approach taken by AG Kokott was rejected by AG Wahl, resulting in the very different opinions. It is logical, as per AG Kokott, that breastfeeding should not be a determinative factor. However, AG Wahl has a strong argument when questioning where the line is drawn, if not at birth.
The answer may lie in AG Wahl’s reminder that the Directives confer the minimum; domestic law can permit more extensive protection. This area looks likely to change in the UK, with the Children and Families Bill (clauses 91 and 92) set to introduce access to adoptive, paternity and shared parental leave and pay for intended parents. Unless and until the same becomes law, the pending CJEU judgments will no doubt prove to be of considerable interest to intended parents.