Brussels, 19/03/2014 (Agence Europe) - On Tuesday 18 March, the Court of Justice of the EU (cases C-167/12 and C-363/12) ruled that mothers who have had a baby through surrogacy are not entitled to maternity leave or its equivalent under EU law. Nonetheless, the member states are free to apply more favourable rules to such mothers, as the European pregnant workers directive merely lays down certain minimum requirements in respect of protection.
The Court was approached by two national jurisdictions which asked whether the refusal by the national competent authorities to allow paid leave equivalent of maternity leave or adoption leave to commissioning mothers run counter to the pregnant workers directive (92/85/EEC) or whether it constituted discrimination based on sex or handicap, which are banned by the equal treatment directive (2006/54/EC) and by the employment equality framework directive (2000/78/EC) respectively.
In the three cases in question, the Court replied in the negative: EU law does not provide for mothers using a surrogate to have parental leave equivalent of maternity or adoption leave. The court explained: - in the pregnant workers directive, the right to maternity leave expressly refers to confinement and its purpose is to protect the mother in the especially vulnerable situation arising from her pregnancy. Consequently, the grant of maternity leave pursuant to this directive presupposes that the worker concerned has been pregnant and has given birth to a child, which is not the case with commissioning mothers. However, the directive only establishes minimum requirements in respect of protection, meaning that the member states are free to apply more favourable rules for the benefit of commissioning mothers; - the refusal to grant paid leave equivalent to maternity leave to the commissioning mother does not constitute discrimination on the grounds of sex in the sense of the equal treatment directive, given that the commissioning father is not entitled to such leave either. Furthermore, the same directive lays no obligation on the member states as regards granting paid leave equivalent to adoption leave, but only an obligation of protection against redundancy for workers in the event that such leave is granted; - lastly, the refusal to grant such leave does not constitute discrimination on the grounds of disability in the sense of the employment equality framework directive, as a woman's inability to have a child by conventional means does not in itself constitute a disability within the meaning of the directive, in other words it does not prevent the commissioning mother from having access to, participating in or advancing in employment. This means that the directive is not applicable in such situations. (FG)