Human procreation is not longer what it used to be. While medical research has created a number of mechanisms that allow people to engage in sexual intimacy without a resulting pregnancy, it also allows those wishing to procreate but who are unable to do so biologically to have children. IVF and surrogacy in many ways challenge our conception of human procreation. Naturally, the law needs to adapt to these changes. Surrogacy in particular however raises a number of value-laden questions, which complicates the law’s response to these medical avenues. It is thus not surprising that no homogenous position exists between Member States on this issue.
In the CD and Z cases, the CJEU had to pronounce itself on how to reconcile surrogacy with an existing legal framework on maternity leave that did not account for motherhood resulting from that mechanism. More precisely, it was faced with the question of whether a mother who did not give birth to her own child, born via a surrogate, has a right to maternity leave under EU law. Family law is not a EU competence. Maternity leave is, however, regulated by the Pregnant Workers Directive (PWD) and some aspects arising out of motherhood and employment are addressed by the Sex Discrimination Directive. In Mayr, the CJEU had already clarified that the Sex Discrimination Directive is applicable to workers undergoing IVF that have not yet been successful.
In CD and Z, the Grand Chamber established that, as a matter of EU law, only women who themselves give birth to the child can benefit from maternity leave. Two Advocates General, Wahl and Kokott, issued opinions and came to opposed conclusions. The Court followed Advocate General Wahl in its judgment. Applying Mayr, it found that the PWD only applies to women who are in fact pregnant. The Sex Discrimination Directive was found not to be applicable either as the commissioning mother of a surrogacy agreement would be in the same position as a commissioning father. Having found that the question fell outside of the ambit of EU law, the CJEU also found the Charter of Fundamental Rights to be inapplicable. In the Z judgment, the CJEU further clarified that the Framework Equality Directive and its provisions on disabilities do not apply to women unable to become or carry out a pregnancy as the directive only targets disabilities that render a worker’s involvement in professional life more burdensome, which is not the case for medical conditions that prevent women from getting pregnant or carrying out a pregnancy. Continue reading