In vitro or in utero?

Sabine Mayr v Bäckerei and Konditorei Gerhard Flöckner OHG

Pregnant workers are entitled to special protection under the law, but what about women undergoing in vitro fertilization? The European Court of Justice (ECJ) has held in Sabine Mayr v Bäckerei and Konditorei Gerhard Flöckner OHG that it is direct sex discrimination to dismiss a woman undergoing such treatment if that was the reason for her dismissal.

Basic facts

Ms Mayr had been working as a waitress for Flockner since January 2005. Following in vitro fertilization treatment, her GP signed her off sick from 8 to 13 March 2005. The company phoned her on 10 March to tell her she would be dismissed with effect from 26 March.

However she was informed on the same day that her eggs had been fertilized with her partner’s sperm and three days later two fertilized eggs were transferred into her womb. She claimed the company could not dismiss her once she was pregnant, as she was entitled to special protection under the law. Flockner argued that she was not pregnant by 10 March and that the pregnancy only occurred at the point of impregnation.

The regional court agreed with Ms Mayr, saying that protection from dismissal was effective from the date of fertilization of the egg. However, the appeal court disagreed, saying protection only arose once the fertilised egg had been transferred into the woman’s body. A further appeal court then asked the ECJ to make a decision as to whether Ms Mayr was pregnant at the time she was given notice of dismissal.

Relevant law

The 1976 equal treatment directive states that member states must not treat men and women differently in terms of working conditions “directly or indirectly by reference in particular to marital or family status”. It also says it “shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity”.

The 1992 directive on the health and safety at work of pregnant women states that women who are pregnant, have recently given birth or who are breastfeeding must be protected against dismissal from the beginning of their pregnancy to the end of their maternity leave.

Decision of ECJ

The ECJ said to benefit from protection against dismissal “the pregnancy in question must have begun”. And as the whole point of the 1992 directive was to safeguard the woman’s health and safety, the court said it must choose “the earliest possible date in a pregnancy” in order to do so.

But when was that date in relation to in vitro fertilization? The court concluded that the date of the pregnancy must be the date of the transfer of the fertilised eggs into the womb, not when the eggs were fertilized. This was because, in some member states, fertilized eggs can be kept for an indeterminate period which would mean women were entitled to protection during the entire period their fertilized eggs were stored.

However, under the principle of non-discrimination in the 1976 directive, protection against dismissal must be granted to women not only during maternity leave, but also throughout the period of the pregnancy. Dismissal of a female worker on account of pregnancy, or for a reason to do with her pregnancy, affects only women and would therefore constitute direct discrimination on the grounds of sex.

The ECJ said that if the reason for her dismissal was because she was undergoing in vitro fertilization, then “it is necessary to establish whether that reason applies to workers of both sexes alike or, in contrast, whether it applies exclusively to one of them.”

Consequently the ECJ found that, for principles of legal certainty, the right not to be dismissed during the period from the beginning of pregnancy until the end of maternity leave did not apply to Ms Mayr’s case. However, under the principle of non-discrimination in the 1976 directive, the Court went on to hold that if the reason for her dismissal was because she was off sick due to in vitro fertilization, then “dismissal of a female worker essentially because she is undergoing that important stage of in vitro fertilization treatment constitutes direct discrimination on grounds of sex.”