By Jonas Deweer-Vanmeerhaeghe, lawyer at the Belgian federal Institute for the Equality of Women and Men, where he specializes in insurance discrimination and the protection of the rights of transgender and intersex persons. Jonas is a founding member of GenderSpectrum, a non-profit advocating on behalf of gender diverse persons, and he also volunteers for UTSOPI, the Belgian Sex Workers Union.
Disclaimer: The opinions expressed here are those of the author and do not necessarily reflect the official position of any organisation.
In the case of Jurčić v. Croatia (application no. 54711/15), on the 4th of February 2021, the first section of the European Court of Human Rights (ECtHR) rendered a compelling verdict on a question of discrimination on the grounds of sex and pregnancy with regards to publicly mandated health insurance. The Court agreed with Ms. Jurčić (hereinafter ‘the applicant’) when she claimed to have been discriminated against by several national authorities and courts. These institutions, despite several appeals by the applicant, upheld the notion that her employment had been fictitious since she had been in treatment for in vitro fertilization when accepting a position with a Croatian company. They claimed that her sole motivation for accepting the position was to obtain the pecuniary advantages related to the status of working persons during her pregnancy.
The applicant, Ms. Jurčić, was born in Croatia in 1975. Her last relevant employment had lasted until 31 October 2009. A few weeks after that, on 17 November 2009, Ms. Jurčić underwent in vitro fertilization. Ten days later, the applicant entered into an employment contract with company N. (hereinafter ‘the company’), which was located some 360 kilometres away from the applicant’s residence.
On 11 December 2009, Ms Jurčić applied to register with the compulsory health insurance scheme of the Croatian Health Insurance Fund (hereinafter ‘the Fund’). She was registered as an insured employee. On 14 December, her doctor established that the treatment had been successful, and that Ms. Jurčić was pregnant. A period of sick leave was prescribed due to pregnancy-related complications.
On 28 December 2009 the applicant requested payment of salary compensation during her sick leave. Soon after, the Fund initiated a review of the applicant’s health insurance status. On 26 February 2010, the Fund rejected her application for registration as an insured employee, along with her request for salary compensation. The reason for the rejection was an in-house expert report stating that, when Ms. Jurčić had taken up her employment, she had already been medically unfit for employment because of the in vitro treatment. The Fund concluded that her employment was fictitious and aimed solely at obtaining the salary compensation and other pecuniary advantages related to the status of employed persons.
The applicant challenged this decision before the Central office of the Croatian Health Insurance Fund (hereinafter ‘the Central Office’), by arguing she had no health concerns after the in vitro fertilization, and that she had no way of knowing whether the implantation would be successful. This argumentation was concurred by a report authored by a specialist in gynaecology and obstetrics.
The Central Office dismissed the appeal, based amongst other arguments on the fact that Ms. Jurčić had been prescribed rest by her doctor following the treatment. They argued that whether she knew she was pregnant did not matter, because she was in no state of health to start employment at a company several hundreds of kilometres away from home.
The applicant then challenged this decision before the High Administrative Court. She relied expressly on the Prevention of Discrimination Act and on the Convention when claiming she had been discriminated against as a woman who had undergone in vitro fertilization. Ms. Jurčić also explained that she had plans to move closer to the company, and that the work was compatible with teleworking.
However, the High Administrative Court upheld the reasoning of the Central Office and dismissed the appeal. The applicant subsequently filed a constitutional complaint with the Constitutional Court, reiterating her previous arguments. She also sought the support of the Gender Equality Ombudsperson. The Ombudsperson issued a warning to the Fund stating its decision had violated the prohibition of less favourable treatment on the basis of pregnancy, and that this constituted discrimination on the grounds of pregnancy. It also recommended the Fund to change its interpretation of the relevant guidelines in similar cases. On 22 April 2015, the Constitutional Court dismissed the applicant’s complaint as unfounded, upholding the reasonings of the administrative authorities and Court.
When laying out the general principles applicable to the case, the Court insists that States have a wide margin of appreciation in policy choice with regards to general measures of economic strategy, as long as the policy is not manifestly without reasonable foundation, is non-discriminatory and is proportional. However, when a difference in treatment is based on sex, the margin afforded to the State is narrow, because the advancement of gender equality is a major goal for the member States of the Council of Europe.
The Court then applies those general principles to the case at hand. Firstly, the Court reviews whether there has been a difference in treatment. It points to case law of both the ECtHR and the CJEU, and to domestic law, to argue that an unjustified difference in treatment based on grounds of pregnancy constitutes a discrimination on grounds of sex. Since the applicant was refused the status of an insured employee because her employment was declared fictitious due to her pregnancy, and since only women can become pregnant, the applicant received differential treatment on grounds of sex.
Next, the Court assesses whether the difference in treatment had an objective and reasonable justification. It starts by stating that the Croatian Government had argued that the decision to revoke the applicant’s insurance status had pursued the legitimate aim of the protection of public resources from fraudulent use, and the overall stability of the healthcare system. The Court rebukes this with the argument that a pregnancy as such cannot be considered fraudulent behaviour, and that financial obligations imposed on the State during a pregnancy cannot by themselves constitute sufficiently weighty reason to justify the difference in treatment.
The Court then goes on to say that, while it was true that the relevant authorities were entitled to verify the factual basis of a health insurance status, such reviews in practice frequently targeted pregnant women, and that women who concluded employment contracts in advanced stages of their pregnancy were automatically branded ‘suspicious’. The Court expressly states that it finds such an approach generally problematic.
Turning to the authorities’ arguments, the Court first dissects the claim that the applicant was unfit to work at a company that was located 360 kilometres from her place of residence because she had been prescribed rest due to complications that arose from the in vitro treatment. The Court considers that:
‘as a matter of principle, even where the availability of an employee is a precondition for the proper performance of an employment contract, the protection afforded to a woman during pregnancy cannot be dependent on whether her presence at work during maternity is essential for the proper functioning of her employer, or by the fact that she is temporarily prevented from performing the work for which she has been hired.’
Furthermore, the Court states that, by limiting their argument to concluding that the applicant had been medically unfit to take up the employment due to the in vitro treatment, the domestic authorities implied that she had to refrain from seeking any employment until her pregnancy was confirmed. This alone is sufficient, according to the Court, to conclude that the applicant had been discriminated against on the basis of her sex.
The Court then highlights certain additional facts that made the difference in treatment ever so marked. Firstly, the applicant had fourteen years of work experience, and thus contributed significantly to the national health insurance fund. She cannot be accused of trying to benefit from a system without having contributed to it. The Court further observes that the Croatian authorities fail to provide any explication of how the applicant could have consciously concluded a fraudulent employment contract since she had no way of knowing she was pregnant. National authorities also never assessed whether the applicant had ever actually taken up her duties, or whether the in vitro fertilization had necessitated her absence from work due to health reasons. There is also nothing to show that women who underwent such treatment would generally be unable to work. Lastly, the Court expresses concern about the overtones of the Croatian authorities’ conclusion, which enforce gender stereotyping by implying women should not work or seek employment during pregnancy or even when it is merely possible they might be pregnant. By doing so, they present a serious obstacle to the achievement of real substantive gender equality.
For all these reasons, the Court concludes that the difference in treatment constitutes direct discrimination on grounds of sex, which cannot be justified by the financial interests of the State. There had been no objective justification or necessity in light of the specific circumstances. Therefore, there had been a violating of Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention.
Judge Wojtyczek issued a concurring opinion in which he criticizes two sections of the judgment. The first point of critique regards the definition of the two groups that are compared in order to establish less favourable treatment. According to the judge, all employees in general should function as the group of reference, since they all receive employment-related income, be it salary or a social benefit. The difference in treatment concerns all pregnant women who enter employment, and who are unable to work during pregnancy, who are deprived of their compensatory social benefits, even though no fraud has been established. The Court does not follow its own case law by failing to define those two groups with adequate precision. Judge Wojtyczek also claims that the observation about the sexist overtones in the authorities’ conclusion is unwarranted, firstly because the Court does not specify which specific statements are problematic, and secondly because ‘all general rules are necessarily based on certain assumptions concerning the typical characteristics of the class of their addressees’ – the assumption in this case being that women may not be able to work during pregnancy.
When I read this judgment, keeping in mind professional experiences with real life cases of discrimination based on grounds of sex, pregnancy and IVF, four elements of the Court’s reasoning drew my attention.
The Court states that it finds generally problematic the fact that reviews of the factual basis of health insurance status were frequently focused on women who entered into employment at an advanced stage in their pregnancy. These women were automatically assigned to the ‘suspicious’ category and received harsher scrutiny of their actions.
We at the Belgian Institute for the Equality of Women and Men often see this attitude towards women seeking employment at various stages of their pregnancy. Recruiters, employers and sometimes even authorities treat these women as if they were trying to cheat the system by daring to want to work. As a result, these women have to construct entire narratives justifying their job applications, and often feel the need to conceal their pregnancy or even lie to be valued at the same level of persons who are not pregnant (which, when found out, only reinforces the suspicions). Research conducted by the Institute in 2017 showed that nearly 35% of pregnant women seeking employment did not apply for jobs during their pregnancy because they believed it to be futile, while 67% of those who did apply never mentioned their pregnancy out of fear for rejection. Men, even those soon to become fathers, hardly ever need to justify their wish for employment or to navigate such unpleasant situations.
The next section of the judgment that deserves special praise is the part where the Court reiterates the principled basis for pregnancy protection in employment. In Dekker, the CJEU found that the financial loss a company would suffer by hiring a pregnant woman could not justify a difference in treatment. In this case, the ECtHR states even more strongly than its EU counterpart that the temporary negative impact on a company is not enough justification to treat discriminate against pregnant people: ‘the protection afforded to a woman during pregnancy cannot be dependent on whether her presence at work during maternity is essential for the proper functioning of her employer, or by the fact that she is temporarily prevented from performing the work for which she has been hired.’
This is incredibly important, not just in the specific context of health insurance as in the case at hand, but also in the broader field of pregnancy discrimination in employment. All too often employers justify the firing or the refusal to hire a woman they know or suspect to be pregnant by the fact that the normal functioning of the organization would be in peril. With this judgment, the Court stresses that this justification does not hold water.
The Court’s third significant finding is the fact that unjustified differential treatment on the base of IVF treatment is discrimination on the basis of sex. The Court stresses that, with their claim that the applicant had been medically unfit to seek employment due to the in vitro treatment, the national authorities implied that women undergoing such procedures should always refrain from seeking employment until there is certainty about the outcome of the treatment.
The Court states that this alone is enough to conclude that there had been discrimination on the basis of sex. Indeed, the authorities’ argument creates an untenable position for all women undergoing in vitro treatment, especially since such treatments can last up to several years. That is why the designation of treatments such as in vitro fertilization as a protected ground is imperative. Belgium recently did just that by adding ‘medically assisted procreation’ as a protected ground in its Gender Code in 2020.
Lastly, the Court deserves appreciation for specifically calling out the sexist overtones in the Croatian authorities’ conclusion. By doing so, it shows that it understands the need to not only challenge the explicitly discriminatory policies, but also the patriarchal ideals that allow such policies to exist. This is essential if we ever want to achieve true gender equality.
Neither counterargument that Judge Wojtyczek presents convincingly refutes this paragraph. Indeed, the underlying assumption that ‘some’ pregnant women ‘may be unable to work’ may be based in reality. However, the Croatian authorities take this reasoning one step too far by expressly stating that the applicant should have refrained from seeking employment until there was certainty about the outcome of the treatment. By doing so, they imply that no pregnant woman should ever apply for a position, and that even the possibility of pregnancy is an absolute reason not to seek employment.
With this judgement, the Court broached a new level of protection against discrimination in the context of employment for women undergoing fertility treatments and all pregnant women in general. It consolidates the existing case law, while also shedding more light on the extent of the current protection. It broadens it, even, by including the criticism of the sexist ideology that gave rise to the challenged policy, and the danger said ideology poses to the necessary deconstruction of gender stereotypes.