The CJEU has sent out a press release in the cases of C-167/12 C. D. v S.T. and C-363/12 Z. v A Government Department and the Board of Management of a Community School. Both involved the rights of surrogate mothers in relation to maternity laws.

EU law does not require that a mother who has had a baby through a surrogacy agreement should be entitled to maternity leave or its equivalent. The Pregnant Workers Directive merely lays down certain minimum requirements in respect of protection, although the Member States are free to apply more favourable rules for the benefit of such mothers.

Both women in these cases applied for paid leave equivalent to maternity leave or adoption leave. The applications were refused on the grounds that Ms D. and Ms Z. had never been pregnant and the children had not been adopted by the parents.

Readers may remember that the opinions of two Advocate Generals in these cases were issued in October and each had a different opinion, one claiming, in essence, that EU laws were there to protect pregnant workers on health and safety grounds that did not apply to a surrogate mother, and the other arguing that the laws should be looked at purposively and that they are there for the benefit of the child as well, who requires bonding time with the mother, surrogate or not.

The CJEU has come down on the side of the former opinion - EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave.

As regards the Pregnant Workers Directive, the Court points out that the objective of that directive is to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding, such workers being considered a specific risk group. In that directive, the provision relating to maternity leave expressly refers to confinement, and its purpose is to protect the mother in the especially vulnerable situation arising from her pregnancy.

The Court adds that although maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, that objective concerns only the period after ‘pregnancy and childbirth’. It follows from this that the grant of maternity leave pursuant to the directive presupposes that the worker concerned has been pregnant and has given birth to a child. Therefore, a commissioning mother who has used a surrogate mother in order to have a child does not fall within the scope of the directive, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby. Consequently, Member States are not required, on the basis of the directive, to grant such a worker a right to maternity leave.

Nevertheless, the Court adds that since the purpose of that directive is to establish certain minimum requirements in respect of the protection of pregnant workers, the Member States are free to apply more favourable rules for the benefit of commissioning mothers.

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