Gender discrimination due to denial of health insurance during pregnancy

In the case of Jurčić v. Croatia (application no. 54711/15, 04.02.2021) the European Court of Human Rights held, unanimously, that there had been a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights read in conjunction with Article 1 of Protocol No. 1 (protection of property) to the Convention. 

The applicant was employed almost continuously from 1993 until 1 November 2009. On 17 November 2009 she underwent in vitro fertilisation (IVF). On 27 November the applicant took up a position with a company in Split and was then registered with the Croatian health-insurance scheme. She learned about her pregnancy in December and sick leave was prescribed owing to pregnancy-related complications. The applicant applied for payment of hersalary during hersick leave. The authoritiesthen took it upon themselves to review the applicant’s health-insurance status. They denied her employment insurance altogether, considering that her employment was fictitious and aimed solely at securing payment during pregnancy. They also held that she had been medically unfit to take up work in a distant town owing to the IVF process. 

The Court noted that, in deciding the applicant’s case, the domestic authorities had limited themselves to concluding that, owing to the IVF procedure, she had been medically unfit to take up the position in question, implying that she had to refrain from doing so until her pregnancy had been confirmed. That approach had been in direct contravention of both domestic and international law and had been tantamount to discouraging the applicant from seeking employment owing to her pregnancy. This alone was in the Court’s view sufficient to conclude that the applicant had been discriminated on the basis of her sex. 

In addition, the Court noted that the Croatian authorities had failed to show how the applicant’s taking up employment could have been fraudulent since she could not have known when entering into employment whether the IVF procedure had been successful and had not been under any legal obligation to inform her employer about it. Nor had the authorities examined whether she had in fact commenced work or whether the IVF she had undergone had necessitated her absence from work due to health reasons. 

Lastly, the Court cautioned that gender stereotyping by the authorities as observed in the applicant’s case presented a serious obstacle to the achievement of real substantive gender equality, one of the major goals of the member States of the Council of Europe.

Stressing that a refusal to employ or recognise an employment-related benefit to a pregnant woman based on her pregnancy, amounts to direct discrimination on grounds of sex, the Court concluded that the difference in treatment of the applicant had not been objectively justified, leading to a violation of her Convention rights.

References from the official website of the European Court of Human Rights