Protection of Maternity : Ecj: Protection of Women Begins after Implant of Feritilised Ova
Is a worker undergoing in vitro fertilisation treatment considered to be pregnant and consequently entitled to protection under the 1992 EU directive? The question submitted to the EU Court of Justice relates to an increasingly widely used medical technique that raises different ethical issues, but the Court refused to "broach questions of a medical or ethnical nature" and restricted itself to "a legal interpretation" (judgement of 26 February 2008, Sabine Mayr, C-506/06).
The unfolding of the events was crucial to this case, which revolves on a question of dates. Sabine Mayr was employed as a waitress by Backerei und Konditorei, G. Flockner in Salzburg. As part of an in vitro fertilisation treatment and after hormone treatment lasting around a month and a half, a follicular puncture was carried out on 8 March and Mayr's general practitioner certified her sick leave. On 10 March, her employer informed her by telephone that she was dismissed with effect from 26 March. The employer did not change his position after Mayr informed him that the transfer of the fertilised ova into her uterus was planned for 13 March. On 26 March, two fertilised ova were implanted in her uterus.
The Court noted that, as a general rule, the "earliest possible date in a pregnancy" must be chosen to ensure the safety and protection of pregnant workers. For in vitro fertilisation, the starting date of protection may be "that of the transfer of the fertilised ova into the woman's uterus". However, for reasons connected to the "principle of legal certainty", protection against dismissal may not be "extended to a worker when, on the date she was given notice of her dismissal [10 March], the in vitro fertilised ova had not yet been transferred into her uterus". Indeed, if such a premiss were allowed, "the benefit of the protection could be granted even where the transfer of the fertilised ova into the uterus is postponed, for whatever reason, for a number of years, or even where such a transfer is definitively abandoned". …