CJEU 18 March 2014, C‑363/12, Z.

The European Court of Justice has ruled on two cases concerning female employees who claimed maternity leave for the birth of a child conceived through a surrogacy arrangement.

Because she has not been pregnant or given birth in the meaning of Directive 92/85, the Court of Justice found that, in this case, the employee is not entitled to maternity leave. Certainly, the Court has previously judged that such leave is also intended to protect the special relationship between a woman and her child. However, on this occasion, it stresses that this objective concerns only the period subsequent to "pregnancy and childbirth", which excludes women who have a baby through a surrogacy arrangement and have not themselves been pregnant. Consequently, the refusal by an employer to grant maternity leave constitutes neither direct discrimination – 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 – nor indirect discrimination – the refusal of leave in this case does not put female workers at a greater disadvantage than male workers. As a result, 1. The Member States are not required to provide maternity leave to a female worker who, as a commissioning mother, has had a baby through a surrogacy arrangement, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby (CJEU 18 March, case C-167/12, CD,). 2. An employer who refuses to provide such a female worker with maternity leave does not commit an act of discrimination on grounds of sex, or of discrimination based on disability, even if the female worker concerned is unable to bear her own child, obliging her to avail herself of a surrogacy arrangement (CJEU 18 March, case C-363/12, Z). These are two cases in which the Court can be said to have erred on the side of caution.