Enfances, Familles, Générations (Oct 2021)
Les lois européennes du travail procréatif : entre biologisation de la maternité et euphémisation des normes de genre
Abstract
Research Framework: This research analyzes rulings of the European Union Court of Justice relating to reproductive work and thus concerning applicants seeking access to specific rights as mothers (biological, intended or potential) or as fathers. Objectives: The aim is to highlight the European laws on reproductive work, i.e., the presuppositions, analogies and deductions on which the Court constructs its reasoning and legal solutions, applicable in social law, and to question their material consequences. Methodology: This research exclusively draws on the European jurisprudence, which is studied from a materialist feminist standpoint. The analysis is firstly discursive, and secondly puts into perspective these discourses with the material consequences of the case law on women’s lives. Results: The Court understands the concept of maternity as a primarily biological reality, because of the physiological vulnerability of pregnant women and young mothers. On the contrary, parental work is perceived as not structurally burdening mothers more than fathers, and the Court applies a gender-blind approach to it based on the equal treatment of men and women. Conclusions: The biologizing analysis of motherhood defended by the Court excludes non-biological mothers, especially those who have resorted to surrogate motherhood (GPA), as well as fathers. Moreover, structural discrimination does not justify the adoption of gender-specific legislation to counterbalance inequalities in the assignment of reproductive work. Contribution: This research shows the ambivalence of European jurisprudence, which oscillates between a regime of exception offering “protection” to pregnant women, and a general regime that minimizes the scope and discriminatory impact of legal and social norms on reproductive work.
