The purpose of the Pregnant Workers Directive is to protect the safety and health of pregnant workers, those who have recently given birth or who are breastfeeding. In CD v ST, however, the Court of Justice of the European Union (CJEU) held that workers involved in a surrogacy arrangement do not fall within the scope of the directive as they are not pregnant at any point, even if they breastfeed the baby.
Ms D entered into a surrogacy agreement, whereby the child was conceived using her partner’s sperm and another woman’s egg. At no time was Ms D pregnant.
In March 2011 she asked her employer for paid leave under their adoption policy, but was told that as she could not provide a “matching certificate” from an adoption agency, she was not eligible. Ms D then made a formal request for surrogacy leave, but ST refused, saying there was “no legal right to paid time off for surrogacy”.
After the baby was born in August 2011, Ms D breastfed the baby for three months. In December 2011, she and her partner were granted full and permanent parental responsibility for the child.
Ms D brought claims for discrimination on the grounds of sex and/or pregnancy and maternity under the Equality Act 2010. She also claimed that the Employment Rights Act 1996 and The Maternity and Parental Leave etc. Regulations 1999 had been infringed. She further claimed that she had been subject to a detriment by reason of pregnancy and maternity and the fact that she had sought to take ordinary or additional maternity leave.
The tribunal referred the matter to the CJEU, asking it to rule on whether the Pregnant Workers Directive applied to women who have a baby through a surrogacy arrangement, particularly those who breastfeed; and whether it was discriminatory under the Equal Treatment Directive to refuse maternity leave to an intended mother who has a baby through a surrogacy arrangement.
Decision of CJEU
The CJEU held that commissioning mothers are not entitled to any paid leave that was equivalent to maternity leave or adoption leave.
It made clear that the purpose of maternity leave under the Pregnant Workers Directive was to protect the health of the mother in the especially vulnerable situation arising from her pregnancy and to protect the special relationship between a woman and her child. However, the protection only applied to the period after “pregnancy and childbirth” as it presupposed that the worker entitled to the leave had been pregnant and had given birth to a child. As Ms D was not pregnant at any time, it followed that she did not fall within the scope of the directive, even though she had breastfed the baby following the birth.
Nor did the refusal to grant maternity leave constitute direct or indirect discrimination on grounds of sex. A commissioning father who had a baby through a surrogacy arrangement would be treated in the same way as a commissioning mother. In other words, he would not be entitled to paid leave equivalent to maternity leave. It followed that refusing Ms D’s request was not based on a reason that applied exclusively to workers of one sex.
As she did not suffer less favourable treatment related to her pregnancy, given that she was not pregnant at any time with that baby, there had not been a breach of the EU Equal Treatment Directive.