Protected from in vitro fertilization dismissal
The ECJ ruled that women undergoing in vitro fertilization treatment, who have had their ova fertilized but not yet implanted, are not ‘pregnant’, and thus are not protected from dismissal by the EC Pregnant Workers Directive (No.92/85). However, the dismissal of a women, if related to her in vitro fertilization treatment, amounts to discrimination on the ground of sex contrary to the EC Equal Treatment Directive (No.76/207), since only women receive such treatment.
The ECJ considered that the objective of the prohibition on the dismissal of pregnant workers in the Directive is to avoid the potentially harmful effects on the physical and mental state of pregnant workers, and that, as such, the earliest possible date in a pregnancy should be chosen for the protection to start.
However, M’s Mayr had yet to have her fertilized ova implanted when the dismissal occurred and the Directive could not be held to apply to a worker in her situation otherwise women, who have postponed the transfer for years, or even abandoned it, would have the benefit of protection from dismissal due to their stored fertilized ova. However, Ms Mayr could potentially rely on Directive No.76/207, which prevents discrimination on the ground of sex.
In vitro fertilization, like pregnancy, can only directly affect women. Therefore, Directive No.76/207 prevents the dismissal of a female worker who is at an advanced stage of in vitro fertilization treatment, if the dismissal is principally based on the fact that the woman has undergone such treatment. Case No: ECJ C-506/06