Women who would love to give birth to children, but who are unable to do so for medical reasons, have always understandably attracted great public sympathy. Historically, the only option for them was adoption. But in the last few decades, other options have become available, in particular IVF and surrogacy.
While EU law does not regulate any of these issues as such, it does regulate maternity leave, by means of the pregnant workers' Directive. Moreover, some other aspects of the employment implications of pregnancy are addressed by the Directive on sex discrimination in employment. For instance, the latter Directive bans discrimination against a woman who is undergoing IVF treatment but is not yet carrying an unborn child, according to the judgment of the Court of Justice of the European Union (CJEU) in Mayr.
But what is the position of surrogate mothers as regards maternity leave? Today the CJEU addressed that issue for the first time, in the judgments in CD and Z. The CD case concerns a British woman who is the commissioning mother of a child who was genetically fathered by her partner, while the Z case concerns an Irish woman who is the commissioning mother of a child who is genetically hers and her husband's. In both cases, a surrogate mother carried and gave birth to the child.
The Court took the view that the pregnant workers' Directive, which sets out the right to maternity leave, can only apply where the same woman becomes pregnant, gives birth and then takes maternity leave as regards a newborn baby (or babies), applying the Mayr judgment, which stated that the Directive only applied once a person was pregnant. The sex discrimination directive could not apply either, because a commissioning father would be treated the same as a commissioning mother; there was no evidence of indirect discrimination; and its ban on discrimination against women who have been pregnant or gone on maternity leave could not apply, since the pregnant workers' Directive did not apply. Since the issue fell outside the scope of EU law, the EU Charter could not apply as regards assessing the validity of the sex discrimination Directive.
In the Z judgment, the CJEU reiterated its reasoning, and also added some further points. It noted that the sex discrimination Directive expressly states that adoption leave is an optional matter for Member States. It then answered questions about the framework equality Directive, notably about the ban on discrimination on grounds of disability in that Directive. In the Court's view, since the EU Directive only applied to discrimination relating to employment, the disability in question has to hinder the worker's participation in professional life. But Ms. Z's condition did not affect her access to employment. Finally, the Court ruled that the validity of the framework equality directive could not be reviewed due to incompatibility with the UN Convention on the Rights of Disabled Persons (which the EU has ratified), because that Convention was only 'programmatic'.
These two different cases were the subject of opinions by two different Advocates-General, who expressed two radically opposed viewpoints. The CJEU essentially followed the opinion of Advocate-General Wahl in the Z case. On the other hand, Advocate-General Kokott, giving the opinion in the CD case, took the view that in light of social developments and the EU Charter of Fundamental Rights, the pregnant workers' Directive was capable of applying to cases where one woman carried and gave birth to a child, while another woman then took care of the newborn baby. Inspired perhaps by the judgment of Solomon, she then suggested that the maternity leave should be split between the two women concerned.
It seems odd that women who undoubtedly consider themselves as being new mothers and who are indisputably looking after a baby who is genetically theirs (or their partner's) fall outside the scope of EU law, given its detailed regulation of maternity leave. Certainly, the key feature of these judgments - the intention that the pregnant workers' Directive apply to the same woman who got pregnant, gave birth and looks after a child - is surely a correct assessment of the legislature's intention. Having said that, the application of the Mayr judgment is a little unconvincing, since it concerned the question of whether the woman concerned had ever got pregnant at all, long before she had a baby to look after.
The EU legislature's decision to treat adoption leave differently from maternity leave and pregnancy in the sex discrimination Directive is undoubtedly clear too. And logically, since the framework equality Directive only applies to employment, it can only be applied to a disability linked to employment. But the CJEU's application of this principle is not fully convincing. In fact, the Z case is difficult to distinguish on this point from the Coleman judgment, where the disablity of the worker's child was in principle connected to her loss of employment, so the Directive applied. If the Directive applies where there is a link between the worker's employment and another person's disability, why does it not apply where there is a link between the worker's employment and the worker's own disability, as long as that disability has an impact, however indirect, upon her employment - in this case, her maternity leave?
As for the UN disability rights Convention, the Court's ruling that it cannot be relied upon to challenge the validity of EU law is, with great respect, clearly wrong. The Convention includes a ban on disability discrimination in its Article 5(2): this is exactly the sort of equality clause that the Court usually accepts can be directly effective, and which therefore provides for a ground for challenging the validity of EU acts. A better approach, leading to the same result, would have been to rule that the application of the Convention to the issues of the Z case falls within the competence of the Member States, not the EU (the Convention is a 'mixed agreement'), given the Court's ruling that EU legislation was not applicable to this case anyway.
There is, of course, direct discrimination in these cases: not between men and women (since men can also be infertile), but between different categories of mothers: those who are looking after a child whom they have given birth to, and those who are looking after a child whom they have not given birth to. The two groups are not similarly situated as regards pregnancy and childbirth, but they are in an identical position as regards childcare. Surely the general obligation to ensure equal treatment set out in Article 21 of the Charter could have been relevant here.
Furthermore, the Court's assertions as regards indirect discrimination are not convincing, as it is surely more likely in practice that women, rather than men, will want to take time off work to look after a newborn. Moreover, in a case involving same-sex couples, it could be arguable that a failure to give them equal treatment with opposite-sex couples as regards maternity or adoption leave would be discriminatory on grounds of sexual orientation, given that it is not possible for same-sex couples to have a child who is genetically the child of both of them.
The Court's literal approach to the EU legislation has also lost sight of its underlying purpose in two respects. First of all, a woman who wishes to take time off work following the adoption of a child (whether there has been a surrogate mother involved or not) faces the same work/life balance issues as a woman who has given birth to a child. The underlying goal of EU law on sex equality as regards employment is to ensure that women have equal access in practice to the workforce. Women who have adopted a child are bound to face problems in that regard, similar to those facing women who have given birth. Secondly, from the perspective of the best interests of the child (an issue addressed by Advocate-General Kokott), and the objective of ensuring that a mother can bond with her child (referred to expressly by the Court), it should not matter whether that child has been adopted or not.
These points lead us to a more radical question: why should the EU legislature itself facilitate massive inequality as regards the care of newborn children? Advocate-General Kokott, noting that the Charter requires the child to have contact with both its parents, then applies that to the rights of the mother. But if we are going (as she suggests) to sever the link between pregnancy and childbirth, on the one hand, and childcare on the other, then why should we assume that the childcare has to be provided by the mother, by means of granting women maternity leave, but not granting parallel (or transferable) paternity leave to men? Indeed, from this perspective, the more generous the maternity leave, the greater the distinction between the roles of men and women as regards childcare, with a corresponding greater impact upon engagement in the workplace. Simply put, maternity leave is the gilded cage of sex discrimination.
Barnard & Peers: chapter 20