CD v ST C-167/12
The claimant in this case is employed by a National Health Service trust in the north of England. She had a baby through a surrogacy arrangement and began mothering the child an hour after the birth, at which point she also began to breastfeed. She and her partner were granted a parenting order. The Claimant was denied paid maternity and adoption leave by her employer on the grounds that she did not give birth to or adopt the child, but was given paid leave on a discretionary basis. In these circumstances, she lodged a claim with the Employment Tribunal. She alleged unlawful discrimination on the grounds of sex and/or pregnancy and motherhood on the basis that the paid leave was discretionary and not underpinned by any law. The Tribunal made a preliminary reference to the Court of Justice of the European Union on the question of whether the Pregnant Workers Directive covered situations such as the Claimant’s.
AG Kokott gave her Opinion first. She took the view that intended mothers are entitled to paid maternity leave under Articles 2 and 8 of the Pregnant Workers Directive, whether they are breastfeeding or not. She made the point that:
[T]he fact that pregnant and breastfeeding workers can be different persons may not have been specifically considered by the legislature. In that respect, however, Directive 92/85 must be viewed in its historical context. In the early 1990s the practice of surrogacy was not as widespread as it is today. It is thus not surprising that the normative structure of Directive 92/85 is based on an approach which takes biological motherhood as the norm.
At paras 46-48 of her Opinion she explained how once an intended mother has taken a child into her care and assumed the role of mother, from that point onwards she is in a situation comparable with that of a biological mother.
She made the thought-provoking comment that if intended mothers were to be excluded from the scope of the PWD that would be to against such a child’s best interests. This in itself, she said, would be contrary to the principles underlying Article 24 of the Charter of Fundamental Rights of the European Union 
The CJEU came to the opposite conclusion. It held that maternity leave is intended to protect firstly, a woman’s biological condition during and after pregnancy and, secondly, the special relationship between a woman and her child. It emphasised the health and safety aspect of the Directive – that it is intended to protect the health of the mother of the child in the especially vulnerable situation arising from her pregnancy. The Court was constrained by CJEU case-law to affirm that the special relationship between a woman and her child (highlighted as a key function of leave in the Directive) was one which required protection over the period which followed childbirth (see, inter alia, Hofmann, Roca Álvarez andBetriu Montull). Despite the considerations of the AG the Court decided the biological fact of childbirth trumps other parental models under the PWD. Hence the Court said at  “It must be added in that regard that whilst the Court has held that 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’.”
Thus the Court concluded that the grant of maternity leave pursuant to the Directive presupposes that a worker has actually been pregnant and given birth to a child, and rejected the claim for direct discrimination on this basis. The Court did not adopt the progressive and rational considerations of AG Kokott.
The Court then addressed the question of whether an employer’s refusal to provide maternity leave to an intending mother who has had a baby through a surrogacy arrangement constituted discrimination on grounds of sex, and concluded that it did not. The Court noted that male partners in a surrogacy situation are not entitled to paid leave equivalent to maternity leave either. There was nothing in the case file before the CJEU to establish that the refusal of leave at issue puts female workers at a particular disadvantage compared with male workers. Thus both direct and indirect discrimination claims were rejected, and as a result there remains a clear lacuna in the EU anti-discrimination law framework. Surrogacy arrangements are few in number but those that do take place will not receive the protection of anti discrimination legislation, even where the intended mother breastfeeds the baby. The CJEU did acknowledge that Member States are not precluded from introducing laws, regulations or administrative provisions more favourable to the protection of the safety and health of intending mothers who have had babies through a surrogacy arrangement by allowing them to take maternity leave as a result of the birth of the child. In the UK the Children and Families Act comes into force later this year which will make it easier in future for the intended parents in a surrogacy arrangement to access adoption leave and pay and shared parental leave and pay.
On 18 March 2014 the CJEU issued a decision in another surrogacy case, Z v A Government Department C-362/12. It relied on CD v ST to reject an intended mother’s claim for direct discrimination and it also rejected her claim for disability discrimination, deciding that the rare condition which rendered her unable to support a pregnancy did not amount to a disability.
For further reading on surrogacy and discrimination, see Rachel Crasnow’s two articles: Employment Law Association Briefing, December 2013, p. 7-8 and Equal Opportunities Review, November 2012.