This case was a referral to the CJEU from an Irish Equality Tribunal. The plaintiff was unable to support a pregnancy and had her genetic child through a surrogacy arrangement. The issue before the court was whether, as a matter of EU law, she was entitled to paid leave of absence from employment equivalent to maternity leave or adoption leave.

The relevant provisions were the EU Equal Treatment Directive (No.2006/54) and the EU Equal Treatment Framework Directive (No.2000/78). The EU Pregnant Workers Directive (No.92/85) was considered by Advocate General Wahl but held its primary purpose was to "protect their [pregnant workers'] physical and mental condition." The court noted that Irish law does not regulate surrogacy and so there is no provision for paid leave of absence from employment equivalent to maternity leave or adoption leave for parents whose children are born under a surrogacy arrangement.

Maternity leave is governed under section 8 of the 73 Maternity Protection Act 1994 and provides pregnant employees are entitled to 26 weeks. Adoption leave is regulated by the Adoptive Leave Act 1995 entitling the employed adoptive mother/sole male adopter to a minimum period of 24 weeks form the date of placement. The terms and conditions of the Plaintiff’s employment include a right to paid adoption leave and maternity leave.

There is no express provision in Irish legislation or in the Plaintiff’s contract of employment for leave arising from the birth of a child through a surrogacy arrangement. But during the surrogate’s pregnancy, the Plaintiff made an application for adoption leave. After having been refused paid leave of absence and offered only unpaid parental leave, the Plaintiff brought a complaint before the Equality Tribunal arguing discrimination on the grounds of sex, family status and disability. The Equality Tribunal had doubts as to the scope and interpretation of the relevant EU provisions and so decided to stay proceedings and refer certain questions to the court, namely is Directive 2006/54 (particularly article 4 and 14) to be interpreted as meaning that there is discrimination on the ground of sex where a woman whose genetic child has been born through surrogacy arrangement and who is responsible for the acre of her genetic child from birth is refused paid leave from employment equivalent to maternity and/or adoption leave?

It was held Directive 2006/54/EC does not apply in circumstances in which a woman whose genetic child has been born through a surrogacy arrangement is refused paid leave of absence from employment equivalent to maternity leave and/or adoption leave. Council Directive 2007/78/EC establishing a general framework for equal treatment in employment and occupation does not apply in circumstances in which a woman who suffers from a condition that makes her unable to support a pregnancy and whose genetic child has been born through surrogacy arrangement is refused paid leave of absence from employment equivalent to maternity leave and/or adoption leave. The argument that a woman’s incompetence to give birth creates a disability was also rejected. http://bit.ly/16EGFLE