In two cases arising out of the UK and Ireland, the Court of Justice of the European Union, the EU’s highest court, has held that women who use surrogate mothers do not have a right to paid maternity leave.  We thank Pinsent Masons LLP (London-based) for first reporting the case cited in this post.

One woman was a UK hospital worker, the other an Irish teacher, and both claimed that contrary to the Pregnant Workers Directive they were denied paid leave because they “had never been pregnant.”  They also claimed sex-based discrimination and disability discrimination.

The preface to the EU Pregnant Workers Directive states that:  “The objective of this Directive is to protect the health and safety of women in the workplace when pregnant or after they have recently given birth and women who are breastfeeding.”  It requires that mothers be given at least two weeks of maternity leave, possibly extended to 14 weeks, and allocated “before and/or after confinement.”

The Court said that the Pregnant Workers Directive deals with “pregnant workers,” or those who had recently given birth or were breastfeeding, because they were within a “specific risk group,” with specific safety and health considerations.  Indeed, the preface states that “Under the Directive, a set of guidelines detail the assessment of the chemical, physical and biological agents and industrial processes considered dangerous for the health and safety of pregnant women or women who have just given birth and are breast feeding. The Directive also includes provisions for physical movements and postures, mental and physical fatigue and other types of physical and mental stress.”

Moreover, the Court held that the use of the term “confinement” meant that the law’s purpose was “to protect the health of the mother of the child in the especially vulnerable situation arising from her pregnancy,” and “also intended to ensure that the special relationship between a woman and her child is protected.”

“It follows from the foregoing that the grant of maternity leave pursuant to [the directive] presupposes that the worker entitled to such leave has been pregnant and has given birth to a child … Therefore, a commissioning mother who has used a surrogate mother in order to have a child does not fall within the scope of the directive, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby.”

The Court also held that there was no sex-based discrimination because refusal of paid leave was not “based on a reason that applies exclusively to workers of one sex” because “a commissioning father who has had a baby through a surrogacy arrangement is treated in the same way as a commissioning mother in a comparable situation, in that he is not entitled to paid leave equivalent to maternity leave either.”   Nor was there disability discrimination because the fact that one woman was unable to carry a child did not “hinder” her “full and effective participation … in professional life on an equal basis with other workers.”

Boy, should this engender some good discussions!