ABSTRACT

In this chapter, the author argues that European Court legislation so far has produced inadequate results for three main reasons. First, it has been characterised by piecemeal approach; secondly, it has ‘confined’ maternity to context of sex equality law; and, thirdly, this legislation is ‘shaped’ by assumptions which reinforce stereotypes without providing an adequate solution to the problem. EC legislation mainly deals with pregnancy and maternity within context of sex equality law. Pregnancy and maternity cannot be dealt by means of Aristotelian argument ‘things that are alike must be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness’. The Directive seems to be based on paradox: maternity was introduced into EC legislation both as a part of equal treatment principle and as a derogation from it. On the one hand it attempts to give the same rights to women and men, on other it sets out derogation in order to offer women ‘protection’.