DEC-E2014-050

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2014 – 050

PARTIES

Ms Z. (represented by Ms Nuala Butler, S.C. and Mr Patrick Dillon-Malone, S.C., instructed by the Equality Authority and the Irish Human Rights Commission)

and

A Government Department and the Board of Management of a Community School (represented by Mr Gerard Durkan S.C. and Ms Cathy Smith, B.L., instructed by the Chief State Solicitor)

File References: EE/2010/181, EE/2010/875

Date of Issue: 9th July 2014

Table of Contents

1. Claim.. 3

2. Summary of the Complainant’s Case. 4

3. Summary of the Respondents’ Case. 5

4. Conclusions of the Equality Officer 6

5. Decision. 10

Keywords: Gender – disability – surrogacy arrangements – intended mother is also genetic mother of the child- right of intended mother to maternity leave or adoptive leave after the birth of her daughter by a surrogate mother – preliminary reference pursuant to Article 267 of the Functioning of the European Union – CJEU decision in case C-363/12

1. Claim

1.1. The cases concern a claim by Ms Z that the respondents discriminated against her on the grounds of gender and disability contrary to Sections 6(2)(a) and (g) of the Employment Equality Acts 1998 to 2011, in terms of not granting her either paid maternity leave or paid leave similar to adoptive leave on the birth of her daughter to a surrogate mother.

1.2. The complainant referred two complaints under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal: one against the Government Department which set the parameters of her employment contract on 18 March 2010, and one against the Board of Management of the school which employs her on 17 November 2010. Two initial submissions were received from the complainant on 8 June 2010 and 26 July 2010, respectively, and one submission was received from the first-named respondent on 13 October 2010. The first-named respondent also indemnified, and represented throughout the investigation, the second-named respondent. On 8 July 2010 and 22 November 2010, respectively, in accordance with his powers under S. 75 of the Acts, the Director delegated the cases to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On the date of the first delegation my investigation commenced.

1.3. On a careful study of the papers filed by the complainant and the first-named respondent, I formed an opinion that my investigation of the matter might benefit from a preliminary reference pursuant to Article 267 of the Treaty on the Functioning of the European Union, to the Court of Justice of the European Union. I held an initial hearing on 11 November 2010 to share this view with the parties and to require written submissions from both parties on this proposal. I also requested some clarification of arguments presented by counsel for the complainant. These submissions were received on 17 December 2010 from the respondent and 28 January 2011 from the complainant. Further submissions were received on 9 March 2012 from the complainant, and on 2 April 2012 from the respondent.

1.4. As required by Section 79(1) of the Acts and as part of my investigation, I then proceeded, after a number of adjournments due to unforeseen circumstances, to hold a joint hearing of the case on 18 April 2012. A preliminary reference pursuant to Article 267 of the Treaty on the Functioning of the European Union, to the Court of Justice of the European Union was sent to that Court on 26 July 2012. The Court of Justice of the European Union delivered its judgement (Case C-363/12) on 18 March 2014. I heard closing arguments from both parties with regard to that judgement on 10 April 2014.

2. Summary of the Complainant’s Case

2.1. The complainant is employed by the respondents as a teacher. She suffers from a rare congenital disorder which means that while she has normal ovaries, she was born without a uterus, making it impossible for her to support a pregnancy. Accordingly, the complainant and her husband considered a number of options to have children, including adoption and surrogacy. After considerable research, they decided to have a child through a surrogacy service operating in the US state of California. The complainant explained in her evidence that they did so on advice from a noted Irish family lawyer, because the State of California has regulated surrogacy extensively, and the intending parents are registered as parents on the child’s birth certificate.

2.2. The complainant spoke about her choice of an agency in San Diego, the care which the agency took with all associated processes, the warm personal relationship she and her husband developed with the surrogate mother and how she was present in the delivery room for the birth of her daughter.

2.3. She also gave evidence on how she was very open with the school which employed her on the situation, and how management was supportive of her throughout the process, including her needs for leave to take the necessary trips to California. However, when she, and the Equality Authority on her behalf, approached the first-named respondent about paid maternity leave or paid leave equivalent to adoptive leave, she was refused. In her evidence, the relevant officials of the first-named respondent were “adamant that she was not entitled to anything”. When questioned by senior counsel for the State, the complainant clarified that she was not looking for an ex-gratia gesture from the first-named respondent, but for paid leave as a right.

2.4. The complainant also gave further evidence on how distressed she was to have to leave her daughter when school started again after the summer holidays, and how she went on sick leave due to the resulting stress. She noted however that she used up a lot of her entitlement to paid sick leave during that time and was worried about her situation, should she fall ill in the future. Furthermore, she stated that it would not be possible to have another child through surrogacy due to this. She also pointed out that the refusal of paid maternity leave had disadvantages to her in terms of income and seniority.

3. Summary of the Respondents’ Case

3.1. The respondents deny discriminating the complainant as alleged or at all. They do not dispute the facts the complainant described in evidence, but submit that entitlements to paid maternity leave or adoptive leave are governed by primary statute, this being the Maternity Protection Acts 1994 to 2004, and the Adoptive Leave Acts 1995 to 2005. The provisions set out in the Interpretation section of the Maternity Protection Act 1994 and in Part II of that Act make it clear that only women who are physically pregnant and go into confinement to give birth to a child (whether alive or dead), are entitled to paid maternity leave under the Acts. The first-named respondent argues that since Ms Z. did not give birth to her daughter, these entitlements do not apply to her, and that the respondents are precluded by statute from granting them to her by right.

3.2. Likewise, the provisions of the Adoptive Leave Acts 1995 to 2005 clearly set out that in order to avail of adoptive leave, an adoption needs to have taken place. The respondents argue that since Ms Z. and her husband chose to avail of the regulatory situation in the US State of California, where they were entered as parents on their daughter’s birth certificate, and therefore did not adopt their child, that Ms Z. is likewise not entitled to adoptive leave pursuant to the provisions of those Acts. The respondents further argue that “leave equivalent to adoptive leave” does not exist in Irish law, and that therefore, the complainant is not entitled to it.

4. Conclusions of the Equality Officer

4.1. The issues for decision in this case are whether the complainant was discriminated against, on the ground of her gender and disability, within the meaning of the Acts.

4.2. In coming to my decision, I have considered all oral and written evidence presented to me by the parties, as well as the preliminary ruling made by the Grand Chamber of the Court of Justice of the European Union on 18 March 2014, concerning case C-363/12, Z. v. A Government Department and The Board of Management of a Community School.

4.3. Arrangements which allow persons to become parents via a surrogacy arrangement were unregulated in Ireland at the time the complainant’s daughter was born in California, and still are not at the time of writing. This means there is no statute to address the complexities of the situation intended parents find themselves in, including any rights they might have in the workplace. As noted, the respondents did not dispute the complainant’s evidence, and in particular did not dispute that she is a person with a disability within the meaning of the Employment Equality Acts, but argued that due to the manner in which maternity leave and adoptive leave are regulated in statute, it was not within the respondents’ gift to grant the paid leave sought by the complainant as by right.

4.4. I accept the argument of the respondents with regard to domestic legislation. However, in light of the fact that the various forms of Assisted Human Reproduction, including surrogacy, represent a new area of social and family life in which very little law exists at present, I considered that it was prudent to stay proceedings and make a reference for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union, to the Court of Justice of the European Union on 26 July 2012. This was to ascertain whether any rights that address the complainant’s situation exist under European Law, in light of the fact that the Maternity Protection Acts are the transposition into Irish law of the Council Directive 92/85/EEC of 19 October 1992 concerning the implementation of measures to encourage improvements in the safety and health of pregnant workers, workers who have recently given birth and women who are breastfeeding.

4.5. The Tribunal’s questions stated to the Court were as follows:

1. Having regard to the following provisions of the primary law of the European Union:-

(i) Article 3 of the Treaty on European Union,

(ii) Articles 8 and 157 of the Treaty on the Functioning of the European Union, and/or

(iii) Articles 21, 23, 33 and 34 of the Charter of Fundamental Rights of the European Union

Is Directive 2006/54/EC, and in particular Articles 4 and 14 thereof, to be interpreted as meaning that there is discrimination on the ground of sex where a woman - whose genetic child has been born through a surrogacy arrangement, and who is responsible for the care of her genetic child from birth - is refused paid leave from employment equivalent to maternity leave and/or adoptive leave?

2. If the answer to the first question is in the negative, is Directive 2006/54/EC compatible with the above provisions of the primary law of the European Union?

3. Having regard to the following provisions of the primary law of the European Union:-

(i) Article 10 of the Treaty on the Functioning of the European Union, and/or

(ii) Articles 21, 26 and 34 of the Charter of Fundamental Rights of the European Union

Is Directive 2000/78/EC, and in particular Articles 3(1) and 5 thereof, to be interpreted as meaning that there is discrimination on the ground of disability where a woman - who suffers from a disability which prevents her from giving birth, whose genetic child has been born through a surrogacy arrangement, and who is responsible for the care of her genetic child from birth – is refused paid leave from employment equivalent to maternity leave and/or adoptive leave?

4. If the answer to the third question is in the negative, is Directive 2000/78/EC compatible with the above provisions of the primary law of the European Union?

5. Is the United Nations Convention on the Rights of Persons with Disabilities capable of being relied on for the purposes of interpreting, and/or of challenging the validity, of Directive 2000/78/EC?

6. If the answer to the fifth question is in the affirmative, is Directive 2000/78/EC, and in particular Articles 3 and 5 thereof, compatible with Articles 5, 6, 27(1)(b) and 28(2)(b) of the United Nations Convention on the Rights of Persons with Disabilities?

4.6. On 18 March 2014, that Court ruled on these questions that

1. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, in particular Articles 4 and 14 thereof, must be interpreted as meaning that a refusal to provide paid leave equivalent to maternity leave to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex.

The situation of such a commissioning mother as regards the grant of adoptive leave is not within the scope of that directive.

2. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a refusal to provide paid leave equivalent to maternity leave or adoptive leave to a female worker who is unable to bear a child and who has availed of a surrogacy arrangement does not constitute discrimination on the ground of disability.

The validity of that directive cannot be assessed in the light of the United Nations Convention on the Rights of Persons with Disabilities, but that directive must, as far as possible, be interpreted in a manner that is consistent with that Convention.

The detailed reasoning of the Court can be found in its decision case C-363/12.

With the clarification thus obtained that the respondents’ treatment of the complainant does not constitute discrimination under relevant European law, either, I am compelled to find that no unlawful discrimination took place when the respondents refused the complainant paid leave following the birth of her daughter through a surrogacy arrangement.

5. Decision

5.1. Based on all of the foregoing, and in line with the decision received from the Court of Justice of the European Union in this matter, I find, pursuant to S. 79(6) of the Acts, that the respondents did not discriminate against the complainant by refusing to grant her maternity leave or adoptive leave following the birth of her daughter through a surrogacy arrangement.

______________________

Stephen Bonnlander

Equality Officer

9 July 2014