Case C-167/12 C.D. v S.T. (Surrogacy)
Court of Justice of the European Union, Grand Chamber
18 Mar 2014
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This case, which was referred to the ECJ by an Employment Tribunal, concerns the scope of EU law rights to maternity leave in cases involving surrogacy. In particular, it raises the following question: where a female worker (‘the commissioning mother’) cares for a baby born to another woman (‘the carrying mother’) through a surrogacy arrangement, is the commissioning mother entitled to a period of maternity leave by virtue of Council Directive 92/85/EEC (‘the Pregnant Workers Directive’) and/or Directive 2006/54/EC (the ‘Recast Directive’)?
In the case at issue, the commissioning mother was neither the gestational mother nor the biological mother of the baby (as her ova had not been used to create the embryo).
The Grand Chamber of the ECJ has now ruled on the reference (and on a reference from an Irish court in a similar case, C-363/12, Z v A Government Department and the Board of Management of a Community School). It held that EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave.
As regards the Pregnant Workers Directive, the ECJ said that the objective of that directive was to protect a specific risk group, that is, women in the ‘especially vulnerable situation arising from .. pregnancy’; and that maternity leave was concerned only with the period after ‘pregnancy and childbirth’. Thus, the grant of maternity leave presupposed that the worker concerned had been pregnant and had given birth to a child. This was so even in a case (such as C.D.) where the commissioning mother had breast-fed the child following the birth.
As regards the Equal Treatment Directive, the court held that a refusal to grant maternity leave to a commissioning mother did not constitute discrimination on grounds of sex, given that a commissioning father was not entitled to such leave either. Further, the refusal did not put female workers at a particular disadvantage compared with male workers, so there was no indirect sex discrimination.
Insofar as the right to adoption leave was concerned, the ECJ confirmed that Member States were free, under EU law, to choose whether or not to grant adoption leave to workers. EU law merely required that if such leave was granted, the workers concerned should be protected against dismissal and should be entitled to return to their jobs or equivalent posts after taking adoption leave.
The full judgment of the Grand Chamber is available here:
Emma Dixon represented the Government of the United Kingdom.
