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Right to paid leave of absence to commissioning parents of a surrogate child (Advocate General Wahl’s Opinion of 26 September 2013 in Case C-363/12)

This is a note on a case involving surrogate parents’ rights to paid leave under EU law. National laws really differ in this respect; according to Wikipedia some prohibit it altogether, whether commercial or altruistic (e.g. France, Norway); some allow also commercial surrogacy(India or Russia, for example); some leave it unregulated so far (Ireland as an example in this case).

In 2013, DG Internal Policies carried out “A Comparative Study on the Regime of Surrogacy in EU Member States” (available  at www.europarl.europa.eu). However, this note does not deal with the question of whether surrogacy is legal but with the right of such parents/mothers to the same benefits and equal treatment as conventional parents, under EU law.

The case involves a reference for a preliminary ruling to the EU Court by the Equality Tribunal (Ireland). So far, only Opinion of Advocate General has been published (available at europa.eu). There is no judgment in this case yet, so I will base my comments on AG’s analysis.

The case is interesting as it raises not only questions concerning interpretation of a number of EU Directives (I will describe these Directives below), the question of whether the Directives are compatible with the primary law of the EU but also the question of compatibility and interrelationship between the Directives and an international treaty, to which EU is a party, namely, UN Convention on the Rights of Persons with Disabilities (of 13 December 2006).

We shall see whether the Court will reach the same result in the judgment or not as AG does. AG makes reasonable points and presents relevant arguments on why commissioning parents of a surrogate child (in our case the mother) are not entitled to paid leave under EU law. At the same time, AG  makes his sentiments quite open in the text of his Opinion; he feels sorry about Ms Z’s physical condition due to which she is not able to have a child, and even seems a little apologetic when proposing to reject her case. Of course, there is nothing to prevent the national legislator from extending such rights to her situation but it had not been done in Ireland.

The EU Directives discussed in the Opinion are:

Directive 92/85/EC  on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (this Directive was not included in the national tribunal’s request, but AG deals with it nonetheless)

Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of mean and women in matters of employment and occupation

Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation

The factual background briefly is as follows. A couple from Ireland decided to use the services of surrogate mother because the woman could certainly not bear the child herself. Surrogate parenthood is not regulated in Ireland. The genetic child of both parents in the couple was born by a surrogate mother in California, USA. The genetic mother, Ms Z, asked her employer to grant her a paid leave of absence equivalent to the adoption leave. Her employment contract envisaged a right to adoption leave (regulated by national legislation). She was only offered an unpaid parental leave and brought a complain to the Equality Tribunal, arguing she was discriminated on the grounds of sex, family status and disability.

The questions referred to the EU Court (in a somewhat summarized manner) are as follows:

  • Is refusal of a paid leave to a commissioning mother of a surrogate (genetic) child a discrimination within the meaning of Directive 2006/54/EC? If not, is this Directive (in)compatible with the primary law of EU, i.e. Art 10 TFEU and Arts 21, 26 and 34 of the Charter of Fundamental Rights?
  • Is refusal of a paid leave in the same circumstances discrimination within the meaning of Directive 2000/78/EC? if not, is this Directive compatible with the primary law of EU?
  • Is the UN Convention on the Rights of Persons with Disabilities capable of being relied upon when interpreting, or challenging the validity of, EU Directives? If so, is Directive 2000/78/EC, and its specific provisions, compatible with the Convention?

As already mentioned, AG Wahl did not find it possible to support Ms Z in her claims concerning interpretation of these Directives and their compatibiltiy with primary law and the international treaty. It is interesting to look at some of the points AG is making in his analysis.

By way of introduction, he explains what the surrogacy is, and why/how it functions in practice (para. 30 et seq.) In this case, both “commissioning parents” (i.e., clients wishing a child) were genetic parents of this child, and not only the father.  They employed the surrogate mother not for the purposes of “convenience” but because Ms Z did not have uterus which is obviously enough essential for bearing the child.

AG Wahl also emphasized that the case concerns the question of a right of a woman having a surrogate child to paid leave of absence equivalent to maternity or adoption as protected by EU law, and hence concerning the question of interpretation of the relevant EU secondary legislation.

There are two themes in the Opinion:

  1. whether there has taken place discrimination on the grounds of sex (i.e. Directives 92/85, 2006/54;
  2. whether there has taken place discrimination on the grounds of disability (i.e. Directive 2000/78 and the Convention mentioned before)

Directive 92/85 protecting pregnant workers

 AG discussed this Directive even though the reference for preliminary ruling does not mention it expressly. Still, he considers it necessary to clarify whether EU law protects genetic mothers of surrogate children, as is the case in question. Well, AG finds it crucial for the Directive to apply that the worker in question has actually been pregnant, as it aims to protect the physical and mental condition of such workers and to help female workers to recover from pregnancy and childbirth (see in particular paras 44-47). So in his view surrogacy arrangement are not the same as pregnancy for the purposes of this Directive: Wahl argues that “this circumstance alone [that Ms Z is a genetic mother through surrogacy] may be construed as enabling the ambit of Directive 92/85 to be widened to protect, in general terms, motherhood, or indeed parenthood, in defiance of its very wording and its clearly enunciated objective”. (para 48)

In addition to the wording and objectives, the result of a broad interpretation to include Ms Z’s situation would also lead to a contradictory situation where adoptive parents would be excluded from the scope of the Directive (as at the time there is no obligation to provide for paid adoption and parental leave).

However, the fact that Directive 92/85 does not apply, does not per se rule out applicability of Directive 2000/54 (on equal opportunities for male and female workers).

Is this situation (commissioning parent’s right to paid leave) covered by Directive 2000/54?

Was differentiated treatment complained of by Ms Z based on sex? There was an earlier case, Mayr, which may have been relevant in this respect. The Mayr case concerned a dismissal of a female worker undergoing an IVF treatment, which was viewed as a discrimination on the grounds of sex, as only females would get this kind of treatment. In any case, this Directive would relate to sex-specific medical treatment or sex-specific illness, but this was not the case of Ms Z. Again, Ms Z did not have to endure specific burdens related to pregnancy and birth, and did not face less favourable treatment because of her being pregnant or ill in this connection.

Again, under national law, the question of discrimination could be raised, at least where  a paid leave is given to adoptive parents but not to parents through surrogacy. Since relevant EU legislation left it to Member States to determine whether they want to give paid leaves to parents through adoption and/or surrogacy, Ms Z could not benefit from the primary rules. In para 69 et seq, AG examines whether Directive 2000/54 is incompatible TEU or Charter. However, he points out that Art 5(1) of the Charter says that the provisions thereof are only addressed to Member States when implementing EU law:  “…to trigger the application of the Charter, a sufficiently close link to EU law must be established. In that sense, invoking a Charter provision will not suffice to transform a situation otherwise falling within the ambit of national law into a situation covered by EU law. This is so because the Charter falls to be applied only in so far as a case concerns, not only as a Charter provision, but also another rule of EU law which is directly relevant to the case.” (para 71) Neither does the Charter extend the field of application of EU law beyond the powers conferred on the EU, or establish any new tasks…

To AG Wahl, it is plain that a specific legislative instrument reflecting a fundamental legislative choice to enhance substantive equality between the sexes cannot be construed, simply by evoking fundamental rights, as covering other forms of discrimination (para 73 of the Opinion). Well, it could be possible to apply a “very teleological” interpretation (he refers to Sturgeon case in para 74) but this would not be possible here as the situation of differentiated treatment did not fall within the scope of the directive at all.

So, all in all, Member States retain discretion to deal with Ms Z’s situation.

What about Directive 2000/78 on disabilities and UN Convention?

Ms Z’s condition should, in principal, be viewed as a disability as she was suffering from a condition, by which she was not able of bearing a child.

To begin with, Directive 2000/78 on equal treatment in the employment and occupation is to be construed, as far as possible, in light of UN Convention on rights of persons with disabilities (to which EU is a party). This is clarified in case Ring, and AG Wahl accepts it in the case here. Since EU is party to this convention, it prevails over EU acts (art 216.2 TFEU).

In its case law concerning the concept of “disability” under the Directive,  EU Court moved from a narrow definition in Chacon Navas case to a broad definition aligned with the UN Convention in Ring case. In the latter case, the EU Court acknowledged that “disability” is an evolving concept.

The hinder to extend the concept of disability in Directive 2000/78 to Ms Z’s situation related however to the scope of the Directive in question, dealing with employment and occupation. As AG pointed out in para 90, this noteworthy difference between the Directive and the Convention related to the fact that the former only addresses professional activities/participation in the professional life, whereas the latter refers broadly to participation in society. Again, this difference was dictated by the policy choices of EU legislators and is “inextricably linked to the issue of what falls within EU competence and what does not.”

Had Ms Z’s condition compromised her participation in the professional life within the meaning of the Directive, the outcome may have been positive for her. In AG’s view, however, her condition does not have this effect and she is not hindered from “the full and effective participation … in professional life on an equal basis with other workers” (emphasis by AG). He added, “…because of the inherently contextual nature of disability, the issue of what constitutes a disability for the purposes of Directive 2000/78 ought to be examined on a case-by-case basis in light of the rationale underlying that legal instrument. In consequence, the issue is whether the impairment in question constitutes – in interaction with specific barriers, be they physical, attitudinal or organizational – a hindrance to exercising a professional activity” (para 96).

In AG’s view, this link (between the limitation and the person’s capacity to work) was missing in the circumstances here.

AG did propose a further step of analysis, in case the EU Court finds that the Directive applies to Ms Z, namely, the criterion of “reasonable accommodation” – striking a balance between the interests of the person with a disability and that of the employer. I will skip the details of argumentation by AG for now (let’s see what the judgment is), but AG’s conclusion that this criterion would not be met by Ms Z, as the need to take time off work was not necessary for enabling her to participate in the work life, but rather a consequence of her decision to undertake surrogacy.

Can the Court examine validity of the Directive in light of the UN Convention?

The general rule (repeated by AG here) is that the Court can examine validity of the secondary EU legislation in light of international rules only where the “nature and broad logic” of the international agreement does not preclude  this, and (cumulatively) where the provisions of an international agreement are “unconditional and sufficiently precise”.  AG Wahl did not consider that these criteria were met in the relation to the present Convention; in particular, the Convention left it to the discretion of the States parties to determine the measures to be adopted.

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